By Iqbal Mohammed, Barrister
Due to government restrictions in response to the coronavirus, courts intend to conduct hearings remotely with Skype for Business, the approved platform for Business & Property Courts.
Some have vacated hearings in the interim; others have switched to remote hearings with impressive speed, and we take this opportunity to thank court staff and judiciary for working so hard to maintain the administration of justice in these incredibly difficult times.
Skype has so far appeared very effective and looks likely to maintain its status, due to question marks over other competitors security – for example, today Mostyn J completed a 3 day trial without a hitch.
Before the hearing
The parties will usually receive an order directing that the hearing:
will now be conducted as a remote hearing [in accordance with the court’s standard directions for remote hearings by Skype]…
Courts also attach their local practice direction which sets out the relevant procedure for the hearing. Please also note updates to the CPR resulting from Covid19.
Once you receive this, download Skype for Business. You can attend the hearing by logging in as a guest in the application. Skype for Business is available for mobiles, PCs and Macs. I recommend you use a computer-based version as it works much better.
Try and test Skype for Business if you can or, at the very least, trial your internet connection using a video conferencing facility in peak time to test your connection. If there is a problem, use your mobile as an alternative (though, avoid tethering).
Documents
While some courts are using Court E-Filing (CeFile), the practice directions asks you to file documents by email not CeFiling (para 8e). This is likely due to judges being unable to remotely access CeFile.
Therefore, focus on creating documents which are small in size, efficient and capable of being emailed easily. You may need to use multiple emails in case of bounce backs (see para 8b). Try and limit emails to 11Mb (approximate size limit for BPCs).
You need to file a remote hearing attendance form. Be sure to include the email address to which you want the invite for the hearing to be sent. The invite is a link which allows you to join the hearing. The PD says you can file this by CeFile or email; you should use email only as filing some things by CeFile and others by email is a recipe for disaster.
Bundles have caused some confusion. Paras 6 and 8 of the practice direction are ambiguous. Judges have complained about the length of pdf files. Usually a single pdf starting with an index would be a sensible way of creating a bundle. However, judges have asked for:
- An agreed index, named as such in the file name; and
- Each document itemised in the index to be attached as a separate document and named in a way which corresponds with the index. For example, if the index states 1. Application Notice, 2. Witness statements; you would attach these two documents with these file names.
While para 8 permits this approach, it has repeatedly been insisted on by judges due to the ease of accessing files separately when compared to scrolling through a big pdf file. If you are attaching documents separately, para 8e allows you to use their native format (ie .doc, .pdf).
You are also required to email an index of authorities and each authority separately. The same points above bundles are repeated. The practice direction expressly permits you to file only the relevant section of an authority (para 10b) which is great and has long been my practice.
Co-operation and common sense
Collaboration with opponents is critical. Please ensure that counsel have each other’s direct emails and mobile numbers. I contacted my opponent some eight times to smooth over issues in the two working days before the hearing. Please work together to ensure that the hearing runs smoothly and co-operate to assist the court and the judge.
Further, only email and include documents or authorities which are absolutely essential. Remote hearings do not lend themselves to rifling through irrelevant or unnecessary material.
The hearing
The day before the hearing you will be invited to the hearing by an email containing a link, asking you to join skype meeting. The link will either open your Skype for Business application or allow you to access the hearing through your browser.
You can log in using your firm’s credentials or as a Guest. If logging in as a Guest, be sure to input your name properly or you will show up as anonymous.
I strongly advise, and the practice direction requires, you join the hearing 15 minutes in advance to ensure you have no problems.
My own experience was extremely positive:
Skype for Business was flawless and deeply impressive in an application for an interim injunction which took 2 hours and 30 minutes. The audio & video was as good as being in person and without lag.
My points to note are:
- Use a computer. My opponent used an iPad and as a result he could only see himself and the speaker; so when I was speaking, he could not see the judge. On my Mac I could see him and the judge at all times.
- Keep your mic on mute unless you are speaking, this avoids interference and provides for a more careful delivery. Note that the mic is muted by default when join so unmute it at the beginning. There is no need to, and you should not, interrupt. The judge will ask for your comments in due course.
- Have the bundle and skeleton readily available on screen as it’s quite hard to work from paper documents. Also have a word processor open to take notes.
- Assume that the judge will not have printed the papers. In my hearing, the judge asked to be taken to the individual documents in the bundle by filename. This was, in fact, much easier. Judges seem to be working completely off screen so adjust your presentation and skeleton accordingly.
- I am convinced that this is the future for court hearings; I cannot see how we could go back to in-person hearings (unless for trial) as remote hearings are much more convenient, easier to conduct and actually much more focused. I found it much better to have the judge, my skeleton and the bundle on the same screen. When my opponent was speaking, I was able to follow him, his references and the judge at the same time without moving around.
Conclusions
HMCTS has worked hard to create an alternative to physical hearings and one which can, and does, work providing that you prepare and test in advance of the hearing. If you have any comments or questions, please let me know below.
