In this Brave New World in which we find ourselves, it is becoming increasingly obvious that the wheels of justice must find a way to continue turning.
Already, Scotland's highest court has launched its virtual court for Inner House appeals and certain procedural hearings in the Outer House are proceeding remotely by way of teleconference. South of the border, court business is proceeding remotely wherever possible. The same is true for other types of proceedings. In particular, the inherent flexibility in international arbitration has seen us working with clients to identify suitable options to enable a trial to proceed virtually.
So, what is meant by "virtually" and "remote hearing", what factors should parties and their legal advisers have in mind when considering how to progress their disputes and what is feasible?
Perhaps recognising some of the potential challenges that may arise in conducting hearings electronically, the Scottish courts have so far provided only for procedural hearings to proceed electronically.
Inner House appeals are being heard on the WebEx video-conferencing platform (with documents to be provided to the Court electronically) and, in the Outer House, the preferred approach to conducting procedural hearings is by teleconference (i.e. without video).
Typically, procedural hearings feature fewer documents and they do not require witnesses to attend in order to give evidence or to be cross-examined by counsel. They are attended by the lawyers and members of the Court (and the Court has facilitated public access to substantive Inner House appeals).
The English courts have encouraged hearings to proceed "wherever possible", including certain "suitable" witness hearings. Here, again, we see the courts acknowledging perhaps that certain hearings will be unsuitable to proceed electronically.
However, for some businesses – those who are involved in protracted disputes, for example, or others whose priorities have changed as a result of the ongoing COVID-19 pandemic – the important thing is that they are able to reach a final resolution of the disputes to which they are party. That means considering in detail how a substantive hearing might proceed notwithstanding the ongoing lockdown (which the Scottish Government confirmed on Thursday 7 May is to continue for a further three weeks in Scotland). It means considering the attendance of witnesses at an electronic hearing. And it means, crucially, finding a solution which represents a fair and level playing field for all parties and one in which all parties can have confidence.
My colleague, Amina Jamil, reported recently on the High Court refusing an application to adjourn a trial, instead ordering that the parties explore "realistic arrangements" for conducting the case remotely. In other words, the Court left it to the parties to find a solution.
The components of a virtual hearing
We have been exploring the available options in detail. Broadly, there are four components which should be considered.
Video platform
This element is all about broadcasting the proceedings. It is the video platform that will be used to broadcast the hearing and any documents or other items. Essentially, this is a video conferencing platform that allows all parties and the Court or Tribunal to join in a video conference, so that the lawyers may make their arguments and/or cross-examine any witnesses. There appears now to be an emerging consensus about the platforms that can be effectively used for a hearing and these include WebEx, Skype, Zoom, Microsoft Teams and Blue Jeans. The main considerations are stability and security irrespective of which platform is selected.
Presentation
The second element is the way in which the presentation of documents (both to the Court or Tribunal and to witnesses) is to be organised. For some hearings, it will be enough simply to refer to a traditional paper or electronic bundle. However, others will require a more sophisticated solution. There are several innovative platforms available in the marketplace which seek to replicate the features of a physical courtroom.
Transcription
This element is self-explanatory, but it is an essential component for a successful virtual hearing in which all of the parties can have confidence. Several experienced operators exist who are able to "plug in" their service to the virtual platform.
Witnesses
Virtual witness testimony raises novel challenges and special attention should be given to it by parties when considering arrangements for an electronic trial. It is important to ensure that witnesses can readily access any material which they are required to review while giving their evidence and that the parties and the court or tribunal is satisfied that witnesses are giving evidence free from external interference (which, of course, is normally guaranteed by the witness giving evidence in the courtroom).
In summary, the tools to enable successful substantive hearings already exist and are ready to be used. As the long-term impact of the pandemic becomes clearer in the coming weeks and months, we are likely to see more and more disputes being resolved in this way: virtual reality is fast becoming reality
Contributor
Associate
