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Virtual witness for the prosecution

04 June 2020

Legal advice on the merits of cases will typically stress the inherent uncertainty of the outcome of trials.  Litigants with fairly proximate trial dates are today facing the additional stress and uncertainty of whether the trial will go ahead and if so whether it will proceed in person, remotely or something in between. 

A recent pre-trial review in the Technology & Construction Court gave an indication of the considerations that will play into a decision as to the mode of trial. Given that we are in unchartered waters in so many areas of life under lockdown, anything that offers some route to clarity is obviously welcome. On this occasion the Judge's reasoning was clearly on show given that his initial view of having a partly remote and partly in person trial was then altered by the representations he heard, to ordering a fully remote trial. 

Pre-Trial Review hearing

The trial (scheduled for next month and involving commercial parties -  Claimant and several defendants) is to be heard in the Rolls Building in London. The trial Judge indicated that, leaving aside any government guide-lines, in the present climate it would not be a straightforward matter for him simply to require the parties to travel to Court when they were reluctant to do so. The proper approach, he believed, would be to consider what sensible arrangements could be made taking into account the constraints that might apply in the Rolls Building operational rules and the safe health of all the participants. 

Remote or partly remote trial?

The Judge's starting point was that the interests of justice were best served by attendance at Court- at least by the legal representatives.  The risk of technical difficulties could not be ruled out and dealing with those over and above the usual rigours of the trial process would be exhausting and create a disjointed environment. Enquiries had been made and a Court could be available to accommodate a legal team of two legal representatives per party. The proposal therefore was for a partly remote hearing, with Counsel and solicitors in Court with the Judge, but all other attendees taking part virtually, including factual and expert witnesses, who would be examined remotely. 

The Judge stressed that both in the lead-up to trial and during the trial, the parties would have to be flexible and agile and, should the need arise, be prepared to flip to a wholly remote trial or even to an adjournment- although that would be very much a last resort.  The ability to create an electronic trial bundle and for this to be issued to all participants was a prominent consideration in the Judge's deliberations and in the parties' representations that followed his initial comments.

Representations from the parties 

Those representations from the parties included an invitation to the Judge to consider whether it was possible for a fair trial to be held remotely (which it is) and that being the case, for the Judge to take into account the government's ongoing entreaty for people to travel only if it were absolutely necessary. It was common ground that everyone would much rather be physically in Court, but the raft of difficulties that this represented ultimately led to a determination that the trial should be held remotely. In reaching his determination as to the right and proper arrangements, the Judge had regard to a number of factors presented to him, including:- 

  1. The nature of witnesses (both expert and factual). They were professional people, giving evidence in their respective capacities without any suggestion that special arrangements would need to be made for the taking of such evidence; there were no   allegations of dishonesty. 
  2. It would not be viable for some parties to have their legal team physically in Court whilst others did not.  The Government's test trace and track system had probably increased the risk of one or other member of a legal team having to self-isolate unexpectedly. Indeed the likelihood would then be that everyone who had shared the Court would be obliged to self-isolate as a consequence.  Having to change arrangements mid-trial created a greater chance of chaos during the proceedings, which should be avoided if at all possible.
  3. An electronic trial bundle and document managing system would need to be utilised in any event, and this could be done efficiently, thereby enabling a fair trial to be conducted. 
  4. The equipment of each party attendant upon the use of any electronic system would, though, impact upon the Court's ability to accommodate the necessary number of legal representatives whilst still observing social distancing. (The same, incidentally, would be true of the space that would be taken up by each party's physical hard copy trial bundle had that option been possible).

Decision

Taking into account the CPR overall objective of dealing with court proceedings justly and at proportionate cost, the Judge ruled that arrangements for trial should proceed on the basis of a fully remote hearing.  However in order to maintain flexibility and to be able to respond to any changing circumstances, a further hearing, three weeks ahead of the trial commencement date was ordered to review these arrangements.  Provision was also made for a dress rehearsal in the week before trial, to test the equipment.

Comment

Decisions as to mode of trial will, a least to a degree, turn on the characteristics of each individual case, including the number of parties, nature of the allegations, any particular requirements of specific witnesses and whether viable alternative arrangements are available. However, with the Courts facing an unprecedented challenge as they continue to seek to dispense justice fairly and efficiently, any judicial indication of the criteria that may affect those decisions is instructive. The Courts are likely to be assisted by (and therefore to welcome) as much co-operation as possible between the parties to the disputes. 

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