The Mishcon Academy Digital Sessions
Conversations on the legal topics affecting businesses and individuals today
Kate Clark
In this episode, what are our experiences of remote Court hearings during lockdown and beyond, the advantages and disadvantages of remote hearings and are they here to stay? Hello and welcome to the Mishcon Academy Digital Sessions podcast. I’m Kate Clark, a Legal Director in the Family Team at Mishcon de Reya and I’m joined by my colleague, Louis Flannery QC, a Partner at Mishcon who specialises in international arbitration and we are recording this podcast from our respective homes. Since the introduction of social distancing rules in England and Wales, the Courts have seen a huge increase in audio and video hearings. In family hearings, which is the area I specialise in, it quickly became apparent that there were key challenges for the remote Court but Louis, would you like to start off by sharing some of your experiences?
Louis Flannery
Yes. I had a hearing in the second day of lockdown. I think it was the 24 or 25 March. It was a virtual hearing conducted by Mr Justice Warby in the Queen’s Bench Division. It was well done. He ignored the advice that he’d been given from the powers that be within the constitutional affairs department whichever governs or ministry of justice, whatever it is that they had to use Business for Skype because he’d found it to be awful and we went onto a simple Zoom platform and there were three other Counsel, plus me, plus him, plus the clerk, I think and it was almost seamless. It helped, I think, from my perspective, that I knew Mr Justice Warby as a tennis partner because it was very, although it was formal in the sense it was a formal hearing and I was addressing him as Counsel, it helped that I was having my first hearing with a Judge that I knew rather than a Judge that I didn’t know. That immediately put me at my ease. He’s a very relaxed person anyway and a very good Judge as testified by the fact that since that hearing he’s been elevated to the Court of Appeal. The hearing itself was three hours long and at all times in the hearing I could see Mr Justice Warby and all the other Counsel. I have had a couple of other hearings since then where the Judge has been blacked out, which I really thought was annoying because you lose in a hearing the body language that you can read in a courtroom and to have the Judge blacked out was even worse because you couldn’t even tell if there was any eyebrow raising or reactions to the other side’s submissions. So, I’ve done about five or six hearings now in lockdown, all with different experiences and different elements that made them better or worse as the case may be.
Kate Clark
Do you feel that because you’re not in Court and you’re not sat next to your client that you lose the gravitas that’s attached to a courtroom?
Louis Flannery
No. I don’t think you lose the gravitas that’s attached to a courtroom because you’re not sat next to your client. As Advocate, your job is to deliver submissions to the Judge or to the Tribunal as effectively as you can and I don’t really think about the gravitas or the lack of gravitas due to the fact that I’m delivering those submissions while I’m sitting on my bed or at my desk or on the couch or in the garden it really that doesn’t really come into it. The fact that you can’t actually be with your client might make a difference if your client’s an individual, I suppose I can see that effect but for the most part my clients are corporate clients who don’t really care about the hearings. I haven’t done a trial, I have to admit. I haven’t done a witness trial in lockdown yet but I’ve done a witness trial pre-lockdown which was remote or partially remote, it was what we call a hybrid hearing where my client was attending by remote video. Sorry, I have done a trial. I’ve done one hearing with a client, in Czechoslovakia, or Czechia as I think it now is called.
Kate Clark
So, that was remote?
Louis Flannery
That was remote, yes.
Kate Clark
That’s probably the difference that I have because I practise in family law, so all of my clients are individual people rather than corporations and I think it has been quite difficult, particularly for the trial that I had in the first few weeks of lockdown when you have been and the clients have been preparing for this for perhaps in excess of a year and have an expectation of what that experience is going to be like and they have then as you say, been sitting in their front room or at their kitchen table being cross-examined virtually and I do think it probably is more difficult for Counsel to assess demeanour or credibility of a witness when we’re all looking at each other through little computer screens.
Louis Flannery
Yes and that’s a problem that’s common I think to all types of proceedings whether it’s family or commercial or arbitration, that the English concept of looking at a witness and finding out whether they are effectively telling the truth or whether their evidence is credible or their recollection is accurate, is harder in a lockdown scenario where the camera is on the witness but the witness is in a room somewhere that’s not in the courtroom. They might not feel so intimidated and therefore might feel a little bit more liberated, as it were, in terms of their evidence and that might be a good thing, I don’t know. It might be a witness is more relaxed and therefore less likely to be nervous and they’re more likely to be a bit more forthcoming. That’s an interesting point, what impact it has on the witnesses… I certainly know through the witness cross-examination that I did in July, that on both sides the witnesses I thought gave evidence in a way that I imagined they would have done if they’d been in a live hearing. Each witness on each side had a lawyer from both sides with them so there was no sort of jiggery pokery wherever the witnesses were and there was that effective control, they weren’t able to read notes off-camera or have answers whispered to them or mouthed to them by people off-camera. That was quite an interesting set-up but that’s, I’ve also had that pre-lockdown so that wasn’t new for me but it’s a mechanism that helps. But I can see that in a family context it must be completely different because your client is your witness and the other side’s client is their witness and that’s obviously much more, it’s more emotive isn’t it? In a family setting…?
Kate Clark
Yeah I think it has to be and I think, as you were saying then, there are I suppose questions about fairness, about whether a witness has got notes or aide-memoires out of sight of their camera or whether there is anybody else in the room that you can’t see and obviously, at the start of the hearing, the Judges give a warning about that but ultimately there’s no way of policing that. I mean, I have had a hearing where I and the client and Counsel were socially distancing in chambers together in a conference room and the other side were in another conference room somewhere else and the Judge was remote and actually that worked quiet well because rather than having eleven faces or nine or ten faces on the screen you were able to communicate with your client and the Barrister in a much more natural way and I think in family cases it’s highly emotional and some people may prefer not to be in a courtroom and to be in their home and to have that sort of extra layer of distance. But I think the majority of clients have found that quite difficult. Having said that, I think that’s the case for final hearings for trials where you have people giving evidence but I’ve also had a lot of what we call directions hearings so, administrative case management hearings which have been dealt with really swiftly on the telephone or on Zoom or another video platform, which would have otherwise meant half a day travelling to the Court, hanging around at Court, waiting to be called and actually the benefit has been that we’ve all been dealt with fairly swiftly and no substantive decisions have been made in relation to the case so perhaps that’s more suited to a remote hearing.
Louis Flannery
Yes. I’ve had one remote hearing, pro bono matter, involving eleven defendants and one claimant which was proceeding in the Ipswich County Court and in the hearing, which was a very complicated directions hearing, by telephone the Court was dialling out to each and every Counsel and there were eleven parties and some parties had both Counsel and Solicitor. So, there must have been more than twenty people to call out but the Court was doing it so, we’re all waiting. That took 15 minutes. Then the Judge finally came on, somebody dropped off, then came back on again, they had to be redialled. Somebody else dropped off, they had to be redialled. Finally after half an hour the Judge said, “I can’t possibly deal with this remotely on a telephone with eleven defendants. I’m adjourning it! In fact, I’m transferring the matter to the High Court in London and they can deal with it because they’ve got the means and the technology and hopefully by the time it’s transferred we’ll be out of lockdown.” Now that wouldn’t have happened if we’d all trooped up to the hearing obviously, but that’s meant a six month delay to the proceedings because the Ipswich County Court could not deal with a multi-party hearing remotely. The commercial Court on the other hand is now well-equipped and hearings are running really smoothly and Judges I know are sitting in their courtrooms while everybody else is remote. They are happier to feel as if they are in the courtroom and I know of hybrid hearings where they’ll have one Counsel on each side in the room with the Judge, socially distanced and everybody else is attending remotely. That’s worked as well. That’s I think becoming far more the norm in the commercial Court than fully remote or obviously in-person hearings which haven’t happened yet. I think something like that happened in the Johnny Depp and Amber Heard hearing where they had one Court for the Judge and leading Counsel on each side. So, Depp’s leading Counsel and Heard’s leading Counsel and then another Court for the jurors, socially distanced and another Court for other Solicitors and Counsel and I think a fourth Court for the reporters. So, they had four courtrooms going simultaneously for Depp and Heard which was… but it worked, the hearing got done, people were cross-examined. What I don’t know, and I’ve got to ask because I’m curious, is to whether Johnny Depp was cross-examined face-to-face or remotely. I suspect it might have been face-to-face because Counsel was in Court and he was in Court. So, I suspect that bit might have been done. But how it would have been done in a courtroom would have been logistically interesting.
Kate Clark
I mean, one thing I think is interesting, I know you mentioned that you have previously had conducted remote hearings due to the international nature of your work, before lockdown. I had never had a remote hearing or even a telephone hearing and so, it’s been quite a shock to go from having never previously dealt with that to now all of my cases…
Louis Flannery
Yes.
Kate Clark
We’re gradually starting to go back into the courtroom but for about four months, every single case, I’ve had about 15 to 20 hearings that have all been dealt with remotely but I’ve actually been quite surprised by actually how successful it has been from the technology side. I do have colleagues that have had some horror stories of waiting for hours to be called and I’ve certainly had the experience you have where there were about fourteen or fifteen people that needed to be dialled in and the Judge was manually having to call every single one and then repeat everybody’s name every time somebody joined the call, which in itself took about 20 minutes. But I don’t know whether you saw in the press recently about the Judge who was heard off-camera criticising a client…? What happened was…
Louis Flannery
I heard. I heard, yes.
Kate Clark
…it was a hybrid hearing and the mother had been giving evidence and she said that she had developed a cough and so the matter was adjourned so she could continue to give her evidence remotely and the Judge made critical remarks about the mother on a telephone call in her private chambers to the effect that the mother was faking the cough to avoid answering questions.
Louis Flannery
Oh, dear.
Kate Clark
And unfortunately, although the Judge’s laptop had been closed, the video link had not been disconnected…
Louis Flannery
Oh dear…
Kate Clark
… and her comments were broadcast to those attending by video link. I mean that’s a sort of horror scenario…
Louis Flannery
Yes.
Kate Clark
… but one which you can imagine happening. In that case, the mother asked the Judge to recuse herself and the Judge decided that she did not need to recuse herself so the mother appealed and the Court of Appeal allowed the mother’s appeal.
Louis Flannery
Yeah…
Kate Clark
And I believe it was found that the fact the comments were intended to be private did not prevent a perception of bias and a fair-minded observer could conclude that the Judge’s view of the mother was coloured and there was a real possibility of bias.
Louis Flannery
Yep.
Kate Clark
But you can only imagine sitting on the video link and hearing the Judge’s comments.
Louis Flannery
Oh if I’d been the Counsel for the other party I would have been groaning at that point. Thinking, “Oh dear. That’s going to lead to trouble.” The moral of that story is, only ever conduct remote hearing with a mac book because you close a mac book, it cuts off everything. If you close our work laptops it doesn’t.
Kate Clark
I think there might be another moral to that story which is don’t make comments!
Louis Flannery
Shhh. Shush! Yes. Shush. At least keep your thoughts to yourself. Quite.
Kate Clark
Keep your thoughts to yourself and make sure you disconnect as well as closing your laptop. There are many things we can learn from that story I think.
Louis Flannery
Yes. That’s, that’s unfortunate. I mean, I’ve had this, I sit as Arbitrator so I’ve had witnesses appear in front of me and I have formed a view as to the credibility of their evidence within a few minutes but I’d never be so foolish as to vocalise those thoughts nor would I think that that would lead me to an accusation of bias at that point.
Kate Clark
But I think that’s part of the difficulty with remote hearings is that you get lulled into a false sense of security because you are sat in your home and you’re not sort of in the… you don’t have, as I said at the beginning, the gravitas of the courtroom perhaps people say things they wouldn’t otherwise…
Louis Flannery
Unguarded.
Kate Clark
Yeah exactly, unguarded. Yeah, anyway, that’s a warning to us all.
Louis Flannery
Mmm yeah I can see those dangers, I mean, it’s the same as you’re visually present if it’s a video hearing so you do have to maintain a certain standard of dress. I haven’t done a hearing in a t-shirt yet, except the Ipswich County Court one which was by telephone but you’re visually present and that’s the only sort of restriction as it were on your demeanour really. And even then, all those jokes about QCs you know, undressed from the waist down or, or, or even worse! But if you, if that’s your only restriction you’re right that you can still feel a little more unguarded because you’re not in a courtroom setting. You’re not sort of brushing the dust off your cuffs or your clothes so much when you’re at home because you’re… it’s more difficult to see any blemishes. But when I stand up in Court I’m much more looking at my tie, is it right? Is the knot perfect? Is everything else…? Is my jacket sticking out or is my shirt tail sticking out or something? But that’s, the remote hearings are here to stay, I think even post-lockdown. They will remain a feature of our legal life way after lockdown I’m sure because there will be occasions where witnesses can’t travel. At least hybrid hearings, I think are now going to be the norm, where there will be an attendance by somebody or other remotely and the savings, can you imagine if you’re going off to some remote family Court in Nottingham or something and you’re having to troop up there. What is the real reason why if it’s just a directions hearing you can’t do that remotely? And there isn’t one.
Kate Clark
I agree. There is a gradual return to in-person hearings but social distancing means that the Courts can deal with far fewer of these than before and we were already very stretched in terms of Court time. And so, I agree, I think remote hearings will continue to be the default for many months to come and they’re certainly here to stay, at least for certain types of hearing. Well, for now let’s wrap up there. I’d like to say thanks so much to Louis Flannery QC for joining me for this Mishcon Academy Digital Sessions podcast.
Louis Flannery
Thank you for having me.
Kate Clark
Thank you. Next time my colleagues Kate Higgins and Åsa Waring will be discussing best practice on diversity in the boardroom and employee engagement and corporate governance framework for this.
The Digital Sessions are a series of online events, videos and podcasts, all available at mishcon.com. If you have any questions you’d like answered or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com.