In its recent ruling in IBRC v Browne [2021] IEHC 83, the Commercial Court has directed that a plenary trial should proceed by way of a fully remote hearing. Provision for the holding of remote court hearings was introduced last August under the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“the 2020 Act”) and until now many interlocutory applications have been determined by courts sitting remotely. However, O’Moore J’s decision in IBRC v Browne represents the first time that the 2020 Act has been relied upon in order to direct a full trial in a witness action by remote hearing.
1. Provision for remote hearings under the 2020 Act
Section 11 of the 2020 Act enables courts to direct that civil proceedings (broadly defined as any proceedings other than criminal proceedings) may take place by way of remote hearing. When proceedings are conducted by remote hearing, section 11 provides that courts shall have the same powers to make orders (including in relation to the attendance of witnesses and production of documents) as apply to proceedings which take place in a traditional courtroom setting. Section 11 also provides that persons who are situated outside the State may participate in civil proceedings by way of remote hearing.
Safeguards in relation to the use of remote hearings have been incorporated into the 2020 Act and section 11(4) provides that a direction in relation to remote hearings may be set aside where this will cause an unfairness to one of the parties or is otherwise not in the interests of justice.
Prior to O’Moore J’s decision in IBRC v Browne, the Commercial Court had in other cases directed that certain witnesses would give evidence remotely or that modules of proceedings would proceed in this format. However, the Court had not previously invoked section 11 for the purposes of a full trial proceeding remotely.
2. Background to proceedings
As noted by the Commercial Court, proceedings in IBRC v Browne have had somewhat of an unfortunate history. Commenced in 2010, four previous trial dates had to be vacated – initially to facilitate the completion of criminal proceedings into the former Anglo Irish Bank and thereafter as a result of the Covid-19 pandemic. The historic nature of the proceedings was one factor referenced by O’Moore J in his ruling.
3. Decision
In directing that the trial proceed remotely, the Court carefully examined the text of section 11 of the 2020 Act and took the view that it conferred upon the courts a broad power to direct that any civil proceedings could be heard by way of remote hearing. In the Court’s assessment, the exercise of this power was not limited to certain kinds of actions and there was consequently nothing to prevent the Court from directing a full trial by way of remote hearing in a witness action. However, in considering whether to order a remote hearing, the Court emphasised that such a hearing must not be directed if it would either create any unfairness to the parties or would be contrary to the interests of justice – per section 11(4) of the 2020 Act. If, during the course of a remote hearing, either of these factors was imperilled, the Court should immediately call a halt to the remote hearing.
Deciding to exercise its discretion in favour of directing a remote hearing, the Court was satisfied that no unfairness would result for either of the parties. In doing so, the court noted that a remote hearing would place both sides in exactly the same position and would not put either at any disadvantage. If at any stage either party felt it was at a disadvantage, it was open to them to have the remote hearing discharged under section 11(4) of the 2020 Act.
In addition, the Court was mindful of the fact that these proceedings had issued back in 2010 but through no fault of the parties four previous trial dates had to be vacated. After such a lengthy passage of time, it was desirable to have the matter determined – even if it could not be classed as an urgent case. In the Court’s view, it was in the interests of justice that the trial would now proceed, particularly since six weeks of Commercial Court time had been set aside for its hearing. If the trial did not go ahead now, the Court questioned when it would it ever take place in light of the ongoing uncertainty as to when a six week trial in a physical setting could proceed. In the Court’s view, it was not desirable that a fifth trial date would be missed, particularly since the trial could proceed now using an acceptable remote platform.
The Court also had regard to the fact that the parties had previously agreed that the evidence of two expert witnesses would be given remotely from the United Kingdom. The Court saw no basis for distinguishing between different classes of witnesses in terms of the ability to give evidence remotely. It was satisfied that the Trial View platform being used would enable the Court to assess the credibility of all witnesses – both expert witnesses and witnesses as to fact. Noting the positive experiences of other judges in the Commercial Court to date with the Trial View platform, the Court was satisfied that it was suitable for witness examination – even in cases which would be likely to involve a significant challenge to evidence through cross examination.
In exercising its discretion, the Court observed that practitioners had become very adept at adjusting to the use of remote hearing platforms and that there were numerous ways in which members of a legal team could liaise even while not assembled in the same physical setting. In this regard, the Court noted in particular that the use of WhatsApp groups had become very popular and had even superseded the passing of handwritten notes as a means of communicating with counsel during cross examination. To the extent that any difficulties did occur with respect to counsel consulting with the rest of the “litigation team” during witness examination, these could be addressed by the Court facilitating a short recess every hour during the trial. As an additional safeguard, the Court also directed that witnesses would give their evidence remotely from a location approved by the Court and in presence of attendees agreed by the parties or directed by the Court.
Finally, the Court did note that as the trial was proceeding remotely via the Trial View platform, this did mean that members of the public would be unable to attend as would normally occur in the traditional courtroom setting. Although members of the public could not attend, in the Court’s view, the trial would still be conducted in the open and the interests of the public would be met through reporting by members of the press.
In all of the circumstances, the Court was satisfied that the trial could properly proceed by remote hearing.
4. Comment
With the Courts becoming increasingly used to conducting hearings remotely, it is not surprising that the Commercial Court has now directed the hearing of a fully remote witness action. Nonetheless, the decision does represent a significant step forward in the use of remote hearings and is likely to mean that fully remote court hearings will become more commonplace, particularly given the ongoing uncertainty as to when current restrictions will be lifted in their entirety.
However, even after the pandemic has ended and with the courtroom technology bound to improve even further, there will surely remain a place within the civil litigation system for the conducting of court business remotely into the future.
