The Fraud Defence and Business Disputes team take a look back at the year that no one expected, and look ahead to what may be in store in 2021.
If there was one thing that could be said of the mood of the country on 26 March 2020, it was that nobody knew quite what to expect, and the judicial system did not escape this uncertainty. The Lord Chief Justice's message to the judges in the Civil and Family Courts on 19 March urged upon them the need to continue with the work of the courts as a vital public service. It also acknowledged, however, that it would not be business as usual.
The default position was that hearings should now be conducted remotely wherever possible. But how would that work in practice? Whilst video and telephone hearings had been around for some time, they were the exception rather than the rule and there was considerable scepticism around their suitability for hearings with live oral evidence. Lack of technological resources in many courts also posed an obstacle. HMCTS' new Cloud Video Platform was already being developed as part of court reforms but was not yet widely available. Not all judicial computer systems were able to support all of the remote conferencing platforms and some judges, by their own admission, were not the most tech-savvy. Parties understandably made applications for adjournments of trials but with mixed success, the courts no doubt mindful of the significant backlog that could so easily build up.
Despite these hesitancies, and notwithstanding some initial teething problems and steep learning curves, the courts, litigants and legal practitioners have adapted well to the challenges of the pandemic and of remote hearings. The courts quickly rolled out improved conferencing facilities. Their rapid response to the pandemic has been widely praised as remarkable, and it is clear that attitudes towards remote hearings have warmed during the course of 2020.
The Fraud Defence and Business Disputes team has been at both ends of the spectrum. In March, days before national lockdown took effect, the team appeared in one of the first remote hearings, representing Fahad Al Raja'an on an interim application in one of the highest value cases currently before the Commercial Court, a case which also featured in the Lawyer's Top 20 Cases of 2020.
In the latter part of the year, the team represented Alexander Yaroslavsky in a ten-week trial in the case of PJSC Tatneft v Bogolyubov & Ors, in what is understood to be the largest fully remote trial that has been conducted in the Commercial Court. With 5 active parties, 28 witnesses, including 13 experts, and 15 counsel, the logistics of a remote trial on this scale are not to be underestimated but the fact that it proceeded at all is testament to the changing attitude towards remote trials, even where live evidence (the majority of which was given through interpreters) is in play.
The judiciary's determination to ensure that the administration of justice is not interrupted by the pandemic has ensured that other claims continue to progress. The Fraud Defence and Business Disputes team issued proceedings on behalf of the Kingdom of Sweden in March this year in a civil fraud dispute concerning over 22,000 pension savers. The proceedings take place alongside two criminal prosecutions in Sweden, which we understand are the largest of their kind in Sweden. In the civil proceedings in England, Freezing Orders have been obtained and the proceedings have progressed despite the pandemic.
The same is true of Vneshprombank v Bedzhamov and ors [2019] EWCA Civ 1992, in which the team obtained a significant Court of Appeal judgment at the end of 2019. This provided essential guidance on what is permitted by way of 'ordinary' living expenses under a Freezing Order, and has been cited in several cases during the course of 2020. Further substantial interim applications were able to be heard remotely during the course of the year and the case continues to progress towards trial.
It is this commitment to the continued administration of justice that means the Courts end 2020 in a good place. The Lord Chief Justice's Report, published in November, reports that during lockdown 85% of the work of the Business & Property Courts moved to be heard remotely and to their original timetable. The feared backlog in those courts has not materialised.
For the Fraud Defence and Business Disputes team, all of the above has meant a busy year and it has been very much business as usual. We are delighted to have retained our Tier 1 ranking in both Chambers and Partners and Legal 500, with the team being described as "absolutely brilliant" and a "phenomenal fraud team" that is "innovative when representing claimants and determined on behalf of defendants". Both Kathryn Garbett ("100% dedicated to her clients", and "excellent at identifying an opponent's weak spot") and Claire Broadbelt ("excellent – hard-working and astute") have retained their individual high rankings, and the Vneshprombank v Bedzhamov case was recognised as a Work Highlight.
So what is in store for 2021? We looked last month at the shifting litigation landscape arising out of COVID-19 and the likely litigation that will come out of the continuing fall-out of the pandemic. The recent roll-out of the COVID-19 vaccine gives hope that life will gradually be returning to normal. However, there is acceptance that it may be a different 'normal' than before the pandemic. Certain changes brought about by the pandemic are likely here to stay, although probably in less 'extreme' form, such as an increase in remote working but perhaps not to the same extent as has been necessary this year.
The same will be true of court proceedings. The Lord Chief Justice's Report recognised that remote hearings had, for many, been "very effective" and that there was "no doubt that the lessons learned from operating in a pandemic will lead to greater use of technology in the longer term". In the Business & Property Courts, "consideration is being given to the longer-term potential for increased efficiencies in some aspects of B&PCs work". It is probably fair, however, to say that remote hearings are more likely to be used for short, procedural hearings, rather than full trials where, when feasible once again, there is likely to remain a preference for all parties to be in the same physical space.
We end 2020 with a much increased familiarity with video conferencing, and a sense that the technological advances that we have seen will continue to accelerate during the course of 2021, but also with a renewed appreciation of the benefits of social interaction that can never be replaced by technology.