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Published 19 February 2021
On 22 March 2020, the Judiciary published a Protocol on how to conduct hearings remotely to help ensure public safety and social distancing in light of Covid-19. The Protocol covers all hearings, trials and applications including those where one of the parties may be a Litigant in Person. It is to be read alongside Practice Direction 51Y of the Civil Procedure Rules, and both are essential reading for practitioners who are due to conduct trials involving remote participants.
Following a number of cases recently taken to trial by our Clinical Risk team, we take a look at how the guidance has worked in practice and address some common challenges faced when conducting trials remotely.
Whilst the preparation of trial bundles has ordinarily been a task for Claimant solicitors, the guidance states the “parties” should prepare electronic bundles. If the trial has several witnesses and experts, it is important that all sides work together to ensure the bundles have been indexed and paginated properly. Once finalised, the bundle should, where appropriate, be sent in electronic form, to all of that party’s witnesses and, of course, to counsel.
This is important as it allows one to check whether a witness can navigate the papers, and that they can do so whilst giving evidence.
If there is any doubt about a witness’ ability to use an electronic bundle, and if it seems there is a real risk that their evidence will suffer because of this, consideration should be given to providing the witness with a hard-copy of the bundle.
Giving evidence remotely can be more challenging than doing so at court. Arranging a test run with the witnesses and experts is advisable, as it can help ensure that they have the right IT and physical environment in which to give evidence.
Factors to consider include:
• Is there a good internet connection?• Is there enough screen-space? It pays to have two screens: one on which to view proceedings/give evidence; and another to refer to the trial bundle.• Can the witness be seen and heard?• Are they in a suitable, quiet, private space?
The advent of remote and hybrid trials means the evidence can feel less cohesive. Online “break-out” rooms can provide an opportunity to catch up on the day’s events and discuss strategy.
In the same vein, WhatsApp groups are useful for raising issues with the evidence and can prove to be more constructive than scribbling a note to counsel; if anything they are the remote equivalent of this time-honoured tradition.
It is important the team are familiar with the various platforms being used during the trial and that witnesses are removed from any communication groups when they are giving evidence. Otherwise, if a witness receives a message via the group whilst they are giving evidence, then this could at very least impact upon the credibility of their evidence and could potentially result in the sender or recipient being found to be in contempt of court (see Hughes Jarvis Ltd v Searle & Anor  EWCA Civ 1, which deals with the consequences of communicating with somebody whilst they are giving evidence).
Witnesses are still required to swear an oath or make an affirmation before giving evidence and should be ready to provide their own holy book if choosing to swear an oath. It is advisable to ensure that the party’s witnesses are aware of this and are sent the wording of the oath/affirmation in the days running up to the trial.
Homeworking is an altogether much more relaxed environment than being at court, but this does not mean the significance of the hearing should be forgotten. What this means is that all attendees must conduct themselves as they would at court. Those who are appearing as witnesses or advocates should ensure they are dressed accordingly.
Whilst it may not be possible to eliminate all distractions, the only webcams and microphones which are on should be those of the judge, the advocates, and whichever witness is giving evidence.
Lastly, beware the perils of recording or transmitting any sound, video, or image from the remote trial. This can amount to contempt of court (see e.g. Gubarev & Anor v Orbis Business Intelligence Ltd & Anor  EWHC 2167). The simplest and most effective rule is this: if you would not do it when attending a hearing in court, do not do it when attending a remote hearing.
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