Preference for attending Court
For hybrid hearings, it is likely that the Court will order that witnesses provide their preference for giving evidence, whether remotely or in person. It is important to liaise with Counsel to check whether they require a witness to attend in person.
Witnesses need to be notified at this stage that, if giving their evidence remotely, they need to have a good internet connection and a private room that they can utilise when attending court remotely.
Solicitors will also have the option of attending remotely and all relevant email addresses will need to be provided to the Court.
If it is a hybrid hearing, it is likely that Counsel for both parties and the judge will be in Court, as will any other witnesses who have chosen to do so.
If witnesses are attending remotely, it is important to try and agree any bundles with other parties as far in advance as possible before Trial. Bundles will need to be sent out to the witnesses, whether by email, document-sharing software or by post. Sending out bundles to numerous witnesses, all at different addresses, may have logistical difficulties, therefore providing the same by email or document-sharing software may be beneficial. The witnesses then do not have to dispose of the hard copy bundle in confidential waste.
Some witnesses may not be able to access document sharing websites due to company IT policies so be prepared to send a bundle over numerous emails.
As with an in-person hearing, it is also important to provide witnesses with their signed statement and any exhibits/relevant documentation in advance of the hearing.
Witnesses will want to know when they are giving evidence, particularly if the hearing is listed over several days or weeks. If possible, it is helpful to agree the timetable with the other parties a couple of weeks in advance of the hearing. Ensure Counsel doesn’t have any preference as to the witness order, and take account of any previous witness unavailability. Further, make sure the witnesses are aware that the timetable could change during the hearing and they need to be available at all times.
It is also important to check with Counsel whether the witnesses need to attend all of the hearing, or just when they are giving their own evidence.
Communication for use throughout the hearing
It is helpful to have a link from a suitable software, such as Microsoft Teams, Zoom or Skype, that can be sent to witnesses, Counsel and solicitors for use for conferences during the hearing. Due to less travel time, it is easier for these conferences to take place at lunchtime or just after the Court day. There is usually only a need to send one invite as the same link can be used on different occasions.
For more direct communication during the evidence, it may be helpful to set up a WhatsApp group between Counsel, witnesses and solicitors. This group can be used for more instant instructions, as well as where Counsel may have a query for the witnesses. However, there are a few things to make provision for here:
- Counsel or Solicitors should write a paragraph at the start of the group to say it is covered by legal privilege;
- No one communicates with the witness whilst they are giving evidence; and
- All witnesses understand and have WhatsApp or access to it.
The hearing itself
Most Courts are using Cloud Video Platforming (CVP) to conduct the hearing. An email will be sent with the link to the hearing; this could be the night before or weeks before the hearing date.
The email will require attendees to copy the link across to Google Chrome, and input the relevant password. CVP has difficulties with Internet Explorer and it is therefore helpful to ensure everyone has access to Google Chrome or Safari.
Witnesses should be discouraged from using smart phones as the small screen and often limited functions may put them at a disadvantage. You should also consider asking witnesses to blur their backgrounds if necessary and encourage use of headphones if it would increase privacy and allow for better sound quality.
Some Courts may run testing sessions before the hearing itself to ensure that everyone can access it. It is helpful if witnesses are able to attend these to minimise the risk of technical difficulties during the hearing.
CVP allows you to turn your own microphone and camera off. Unless the Court directs otherwise, only those individuals speaking should have their cameras and microphones on. In the event a witness forgets, the WhatsApp group, as identified above, can be a good platform to remind people to ensure they have their microphones and video off.
Witnesses will provide their evidence in very much the same way as they would do if they were at Court. However, it is more important, due to the delay that can happen over CVP that witnesses wait for the respective Counsel to fully finish their question before attempting to answer.
If a witness did not hear the question, whether due to a technical difficulty or otherwise, they should ask for the same to be repeated. Further, if witnesses are directed to a page in the trial bundle, they should take their time in finding the page and reading it, if necessary.
Witnesses should be encouraged to state if they need a break or to get a glass of water. Giving evidence remotely can often be more tiring and the use of the computer screen may cause headaches.
It is possible that, whether due to technical difficulties or other unexpected reasons, a remote hearing may become hybrid or fully in person. To ensure the hearing can remain effective everyone must be in a position to adapt quickly. It is important for solicitors to keep everyone informed and to ensure that if there are any issues with witnesses physically attending Court they are identified at an early stage and Counsel is kept updated.
Alternatively, it may also be the case that a hybrid hearing becomes fully remote, for example, if a party is displaying COVID-19 symptoms. The provision of remote access for all involved should therefore always be kept under review.
It is also sensible to make sure you have telephone numbers for the witnesses in case any of the technology fails.
Court Practical Guidance
CPR PD 51Y is the direction for video or audio hearings during the Coronavirus Pandemic. In brief, this states that where the Court directs that proceedings are to be conducted wholly as video or audio proceedings, the Court may direct that the hearing must take place in private where necessary, but it must be recorded in a manner directed by the Court.
As well as this national guidance, there will also likely be local guidance given by the relevant court or area.
Further, the running of cases during the pandemic has also been the topic of recent case law.
In Bilta v Traditional Finance Services Limited(TFS) & orths  EWHC 36, a dishonesty case, the Court considered if it was appropriate to adjourn the trial given that four witnesses, who were due to face rigorous cross examination, all no longer wished to attend Court in person.
The Court dismissed TFS' application for an adjournment on the basis the Court could make adequate provisions for all witnesses to attend in person. This included using a 'super court', with limited numbers in the Court room, no paper files and no one within five metres of the witness giving evidence except for one person from their household to ensure they were not isolated. The Court also considered sitting outside of the core hours.
Whilst the above is a unique case, and required an adequately sized Court room, this is evidence of the lengths some Courts may go to in order to ensure a hearing can still take place 'in person'.
Authors: Adam Hartridge, Rose Silvester and Naomi McMaster.