WHEN REMOTE HEARINGS GO WRONG: AND STRUGGLING THROUGH TO PUT THEM RIGHT – AT WHOSE COSTS?

I often listen to, and read, official statements about remote hearings with a degree of scepticism.   The impression is given that things are going smoothly. The reality is that things are often going awry and it is taking a great deal of patience and ingenuity on the part of all those involved to keep things running.  It is important that we keep a running tally of problems.  Firstly so those of us involved in day to day litigation can have some idea of how to deal with them, secondly so that those responsible for running the system are not simply allowed to make statements that matters are running smoothly.

THE MASTER’S COMPUTER FILLED TO CAPACITY

An example of ingenuity, can be seen in the judgment of Master Gordon-Saker in  Iwuanyawu v Ratcliffes Solicitors [2020] EWHC B25 (Costs)

“First I must apologise that this is a reserved judgment rather than the ex tempore judgment which everybody would have expected. The hearing was held remotely by Skype and proceeded fairly smoothly until, towards the end, the recording stopped and would not restart. That turned out to be because my computer’s hard drive had filled to capacity and would accept no more Skype recordings, for which I apologise. Accordingly I recorded the remainder of the hearing on my mobile telephone and, as by then my computer was struggling to open any documents, I reserved judgment.”

OVERCOMING HURDLES – BUT AT WHOSE COST?

I have some disquiet about the judgment of Mrs Justice Lieven in SX (A Child) [2020] EWHC 1573 (Fam). Not about the decision to hold the hearing, and the need to plough on in the face of technical adversity, but about the fact that the technology was dealt with by counsel.

“In my view the process of having counsel manage the technology was an excellent solution. I had no concerns it was not being done entirely fairly to all parties and it meant that there was no burden on HMCTS or my clerk.”

The hundreds of millions of pounds that HMCTS has spent ( perhaps,more accurately,squandered) on “technology” has resulted in a situation where a judge now finds it better to have counsel manage the situation.

(Lucy Reed has written about these issues in her blog Pink Tape, see the post “Invidious”)

1. The hearing was held remotely using the Zoom platform. I have issued a judgment setting out my reasons for proceeding with hearing the lay evidence remotely, see A Local Authority v Mother and Father and SX [2020] EWHC 1086 (Fam).

2. All the witnesses gave their evidence remotely through computers from wherever they were staying in lockdown. When it came to the Father giving evidence there were significant difficulties with his attendance during parts of the hearing. I will not set out the detail but on the morning of the second day of his evidence he said that his Wi-Fi was not working and that significantly delayed the morning session. In the afternoon he said that he had a flood in his kitchen and could not attend the hearing, although he ultimately did do so. Whatever the truth of these events, I took the decision that to ensure that the hearing could be completed he should complete his evidence from counsel’s chambers. I ordered him to attend those chambers on the third day of his evidence and he completed his evidence on 13 May from a computer in chambers. Similarly, Ms King had a problem with her Wi-Fi whilst cross examining the Father. She agreed to travel into chambers, which happily was only 30 minutes away, so that she had a secure connection. I record these events in order to highlight that conducting a hearing such as this does require some flexibility and perhaps creativity, but on this particular case problems were capable of being overcome.

3. Overall, I am confident that the hearing was undertaken fairly, all the witnesses had the opportunity to give their best evidence, and the hearing was not materially impeded by being undertaken remotely rather than in a courtroom. Some of the evidence was extremely upsetting and there were times when the Mother, Father and the paternal grandmother obviously found the process distressing, but in my judgement this reality was not worsened by the evidence being given remotely. I set out below my judgement as to the truth of the evidence that I heard. I do not consider that my ability to judge the truth or otherwise of the evidence was materially hampered by the remote nature of the hearing. Although watching a witness via computer is different from doing so in court there are advantages as well as disadvantages. The witness appeared much closer and facial expressions were easier to pick up. The interaction between the cross examiner and the witness was surprisingly similar to that in court and, in my view, cross examination was as effective as would have been the case in court. I am also confident that each witness was on their own when giving evidence and was not seeking external advice.

4. I also record that all the advocates and, I was assured, the parties were entirely content with the process and felt that a fair hearing had been achieved. At the end of the hearing there was a clear consensus that the decision to proceed with the hearing had been the correct one. I want to emphasise this because I am conscious of the danger that the professional parties view a remote hearing to have gone well whereas the lay parties may sometimes feel less content. It took considerable effort to ensure that this was not the case here. There was no suggestion from any of the lay parties, or witnesses, that they did not feel satisfied with the process. I must also record my thanks to Mr Tughan who organised the technology in a most efficient and seamless way. In my view the process of having counsel manage the technology was an excellent solution. I had no concerns it was not being done entirely fairly to all parties and it meant that there was no burden on HMCTS or my clerk.