In this context, the legal sector has been very fortunate: thanks to the widespread use of technology, working from home has allowed lawyers to continue to operate effectively when advising their clients. For London and the law, it has therefore been business almost as usual, albeit in the most unusual of circumstances.
Compared to other legal practice areas, the dynamics of litigation are unique. Under pressure to reconfigure the delivery of its services, England’s court system responded to the pandemic at great speed. On 17 March 2020, the Lord Chief Justice, Lord Burnett of Maldon, issued a Coronavirus Update which stated that it was ‘of vital importance that the administration of justice does not grind to a halt’ and that there was ‘an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible.’
Video conferencing is not new to the civil courts: it has been permitted for the past 20 years, most often to hear evidence from witnesses who are based abroad and to reduce international travel costs. Meanwhile, fully remote video pilot hearings were being trialled shortly before the first lockdown happened last March. But no-one anticipated that their widespread adoption would happen so soon in practice as HM Courts and Tribunal Service rapidly expanded audio and video capabilities to enable fully remote hearings.
Three months after their inception, Sir Geoffrey Vos, Chancellor of the High Court reviewed the progress of online remote courts. In what he labelled ‘The new normal in the Business and Property Courts (B&PCs) post COVID-19’, he noted that the B&PCs had managed ‘in the 12 weeks since lockdown to undertake nearly 85% of usual business. That is quite an achievement.’
The successful transfer of England’s civil court system to full online operation has endured without interruption ever since, demonstrating a pragmatic flexibility and agility that is matched by very few other jurisdictions. For example, courts in a number of EU member states were shut for a sustained period, while in Hong Kong the failure to deploy technology meant that courts were closed for several months.
‘Business and Property Courts had managed in the 12 weeks since lockdown to undertake nearly 85% of usual business’ noted Sir Geoffrey Vos.
Trying to predict with any certainty the realities of a post-COVID world is impossible – as evidenced by the various shades of opinion on just how much working from home will become part of the new normal. When English courts begin their gradual return to a complete range of in-person hearings, two questions therefore arise: what lessons have been learned from this protracted virtual experiment and to what extent will remote hearings have a future role in court proceedings?
‘The main lessons that emerge are the importance of preparation for remote hearings at both a technical and a legal level particularly by legal representatives, and the perception that the medium has proved generally suitable in the commercial field, particularly for shorter hearings,’ says Sir William Blair QC, formerly the Judge in Charge of the Commercial Court and now an arbitrator at 3 Verulam Buildings.
On shorter hearings, Sophie Eyre, co-head of Bird & Bird’s international Dispute Resolution group, develops the point. ‘In relation to doing video injunctions, ex parte and urgent relief, judges are now considerably more adept than they were,’ she says. ‘That is a real positive to have come out of the past year.’ The same applies to directions hearings, she adds, ‘where some barristers use it as a platform for grandstanding, which has now gone. That is also a good thing. This type of interim hearing can work very effectively online.’
Clive Coleman, BBC legal correspondent until the end of 2020, has interviewed many judges and barristers over the past year about their online court experiences. He offers an unambiguous assessment.
‘There will be no return to February 2020,’ he says. ‘COVID has turbocharged a move towards remote hearings that was already underway. They work pretty well for the judiciary, lawyers and the press, who can see and hear the participants much better than in courts where they are sitting at the back or at the side.’ That, he believes, is a shot in the arm for open justice.
From a courtroom practitioner’s perspective, Benet Brandreth QC offers a more nuanced response. Having undertaken two fully remote trials, he has found them to be ‘very smooth and effective affairs.’ The courts, he notes, have ‘adapted very well and are adept at addressing any technical problems because they allow sufficient time for them to be dealt with.’
‘As a profession, we were very nervous about how it was going to work, but like most people in the chancery and commercial litigation fields, my experiences have been very positive. Having done two full virtual civil fraud trials, neither client expressed strong concerns afterwards that they did not get a fair hearing.’
Steven Thompson QC
Beyond the occasional technological challenge, Brandreth identifies some practical downsides. ‘Communicating remotely is a more tiring, more involved business,’ he says. ‘The concentration required is slightly greater than when you are in person. Your ability to communicate easily and freely with lawyers on the other side is also very limited. Because you are not sitting next to each other, you are not able to exchange thoughts or check where they are or how long they are going to be. That is a limitation.’
He further identifies ‘the inability to easily hand up a document or reference something new at short notice, and the lack of the freeness that comes from being able to discuss things in person.’ Meanwhile Thompson highlights the challenge of ‘witnesses being able to manage electronic files and paperwork in relation to the questioning.’ That is an issue, he adds, because it lengthens the whole process.
Having no alternative but to make the best use of the available technology in virtual hearings, both barristers and judges are generally upbeat in emphasising their merits. Whilst there are some clear advantages of virtual trials and hearings Morag Macdonald, co-head of Bird & Bird’s international Intellectual Property group, is equally conscious of the drawbacks.
‘There are going to be some benefits with the new technologies that we see in litigation hearings in the UK. But our experience to date confirms that there is nothing quite like a physical in-person meeting. And no matter how hard you try it is not as good a service with the available technology as it is when you can have an in-person hearing.’
Morag Macdonald, co-head of Bird & Bird’s international Intellectual Property group
Going forward, Eyre anticipates further difficulties, especially in relation to the cross-examination of witnesses where credibility is an issue. ‘It is so important to have an in-person cross-examination because in a virtual hearing, judges only have the witness’ face,’ she says. ‘They cannot see the fidgeting, the nervous tics, the fiddling of the leg, the sweat under the armpits. Much of that is lost in a virtual hearing, which is not quite so intimidating. When credibility is at stake, there has to be a level of hostility where, for example, there are allegations of fraud.’
Every remote hearing has the same potential technical issues that can arise on a video conference call. Anyone who has become familiar with the travails of video conferencing over the past year can readily appreciate the challenges faced by experienced litigators and parties alike: the technological shortcomings of assorted video platforms are manifestly apparent, such as latency issues which inhibit the natural flow of conversation.
Brandreth concurs that there is no substitute for trials being held in person. ‘Some of the ease of discussions and of questioning is lost in virtual hearings,’ he says. ‘Judges, in particular, will want for submissions and for cross examination, to have that ease returned to them, where possible, by having people in court.’
In a virtual trial, Thompson points to ‘the lack of a panoramic view.’ As an advocate, he explains, you focus on questioning the witness in front of you. ‘But you do not just want to focus on one person’s face,’ he says. ‘You also want to be able to see the judge’s reaction and sometimes your opponent, as well as the body language of other people who are not involved in the particular dialogue at any given moment. That is lost.’
For litigants, suggests Coleman, the virtual process has also been more problematic. ‘Not being in the same room as your legal team makes communication and interaction more difficult,’ he says. ‘The simple act of conversing with your solicitor and barrister is far more challenging when it has to be done in 2D via screens and texts from a different location.’
Macdonald says this has not been the case for UK-based clients at Bird & Bird. ‘We are all together – clients come into our office and we use one of our big rooms for the trial. Turn the video and audio off and they can talk to the legal team,’ she says. But for some clients, other potential hazards may exist. In practical terms, the efficacy of evidence given by some expert witness evidence may be compromised in virtual intellectual property trials.
‘In IP disputes, we depend a lot on expert evidence, that is really important, particularly in patent cases,’ says Macdonald. ‘It is so difficult having an expert being cross-examined who is not in the same room as you. He could be on the other side of the world. Most experts want to be able to draw things on a flip chart. As engineers or scientists, they explain themselves by drawing rather than by speaking. Not being able to do that is really tricky.’
There is no doubt that remote hearings have provided as effective a solution as was possible in very challenging circumstances. Although practitioners may hope for a return to the status quo, a consensus exists that remote hearings are here to stay, assisted by the rollout of CVP (cloud video platform) technology, which should make them more stable. Much less certain is just how prevalent they will become as further reforms of procedure, rules and practice are implemented.
‘A hybrid outcome is likely,’ says Blair. ‘Some senior judges in a number of jurisdictions are going further and looking critically at the current model of court hearings which dates back to the 19th century, and asking how it should be adjusted for the digital age. New thinking has been spurred by the experience of the pandemic which has forced a reassessment.’
There appears to be no going back in the UK, according to Vos. Last June, he said: ‘We should make long-term use of what we have learnt and devise a new way of delivering justice in business and property cases; a way that is quicker, more cost-effective and allows greater access to justice.’ Logically, that means more virtual hearings, even if experience suggests that more speed and less cost are not always the automatic corollaries of a virtual trial.
In the English courts, there is a degree of inevitability as to the overall direction of travel, confirms Brandreth. ‘The days of the telephone hearing are gone, to be replaced by an MS Teams based hearing, because it is better when you can see someone, rather than a disembodied voice,’ he says. ‘A lot more applications can and will be done remotely, rather than requiring people to come to court. Although we will go back to hearings in-person for trials, there will be much greater use of video cross-examination when dealing with witnesses who are abroad, or for whom it is difficult for the court otherwise to hear them.’
Coleman believes that the nature of advocacy itself is set to change as a result. ‘Lawyers will need an ability to perform in front of a camera,’ he says. ‘More and more law is going to be done remotely and any advocate would be foolish not to really think about how they can come across most effectively on screen. The way in which you project is different from court, the way you use your natural props – your body, eyes and voice, all needs to be re-thought and tailored to remote justice.’
In the enthusiastic rush to allow greater use of technology in English courts, it is important that, in the words of that familiar legal aphorism, ‘Not only must Justice be done; it must also be seen to be done.’ This particularly applies to international clients who are at a distance and cannot efficiently visit the UK for a major hearing.
Macdonald concludes: ‘Going forward, one particular feature that we would like to keep from the current situation would be to have hearings in the court filmed for the benefit of our clients so they can see what has happened. It has been really beneficial for some clients to be able to watch a hearing remotely, when they have been unable to travel to the UK. That will equally apply in a post-COVID environment.’
She anticipates that more interim hearings will be held remotely as a matter of expediency since there is a broad consensus that they work well. Far less certain is the issue of trials. ‘I do not think that we will end up with trials being remote,’ she says. ‘Judges typically prefer to be in the same room.’
‘There are some good efficiencies in having short remote hearings, but not in trials. Introducing more digital technology in the county courts, such as electronic bundles, would however improve their efficiency,’
Sophie Eyre, co-head of Bird & Bird’s international Dispute Resolution group
Unlike many other jurisdictions, London’s commercial courts have successfully managed the myriad challenges of the pandemic, maintaining a distinct comparative advantage. The technology has worked, cases have progressed without delay and no backlog has occurred. The move into virtual hearings – exceptionally quick and highly efficient – is a testament to London’s agile response and the courts’ ability to cope under extreme pressure.
Above all, London’s continued pre-eminence as a forum for international commercial disputes is a tribute to the exceptional judges who make it possible. They remain the bedrock upon which the entire system depends.
Clive Coleman, BBC legal correspondent until the end of 2020
Sir William Blair QC, formerly the Judge in Charge of the Commercial Court and now an arbitrator at 3 Verulam Buildings