Virtual Proof for the Win!

Last month I conducted my first virtual proof for a bus company following a road traffic collision that occurred in October 2019. Here I discuss the case and my experiences of the virtual courtroom.

The Facts

A collision occurred between a car and a double decker bus on a very sharp bend, typical of a country road. Quantum had been agreed and the Proof was restricted to liability. The Sheriff found in my clients favour, that the bus driver was not at fault.

The Evidence

The court heard from four witnesses. The claimant gave evidence himself and I led evidence from the bus driver, a passenger on the bus and an engineer.

The claimant's position was that on approach to the bend, he saw the bus coming around the bend and encroaching on to his side of the road. When he realised there wasn’t enough room for both vehicles to pass, he pulled as far left as he could and performed an emergency stop. The bus then collided with his stationary vehicle.

The bus driver's evidence was the opposite. Once he had negotiated the bend, he saw the claimant's vehicle and brought the bus to a controlled stop. The claimant's vehicle then collided with the stationary bus. The bus driver did concede that part of the bus may have crossed the centre line due to the size of the vehicle and the layout of the road but that did not alter his position that he had stopped before the collision occurred. The evidence of the passenger supported the bus driver's position that the bus had come to a stop without incident prior to the collision.

Decision

The Sheriff accepted the bus driver's evidence that he was driving slowly and carefully around what was a tight bend. So too, his evidence that he may have crossed over the centre line when doing so. The Sheriff accepted my submission that this act was not evidence of negligence (relying upon the English case Whiteford v Kubas UAB (A Company) [2012] EWCA Civ 1017). To suggest it was imposed a higher standard of driving amounting to a 'counsel of perfection'.

The Hearing

The hearing was conducted by WebEx in the comfort of my make-shift office/spare room. I had used this platform before but for procedural matters only. Helpfully the Sheriff Clerk arranged a practice session a few days ahead of the Proof to make sure all parties, including the witnesses could access the system. All that was needed was either a laptop with a camera or a smartphone or iPhone and a reliable Wi-Fi signal.

There were some minor technical issues during the hearing. For example, despite the practice session, when witnesses were joining to give evidence, the inevitable phrase "you are on mute" could be heard or cameras were not on and the court was essentially "adjourned" until these technical issues were resolved. Thankfully only a minor glitch, unlike the Texas lawyer who made the headlines this week when he appeared as a cat during a virtual court hearing! 

Other than those minor technical issues it ran rather smoothly. The hearing started promptly at 10am which is generally unheard of for in-person hearings. Often the Sheriff has other business to deal with and it can take time to locate witnesses who have wandered away from the designated meeting point. Rather than hunting for witnesses they logged onto the system when the Sheriff Clerk telephoned them to tell them that it was their time to give evidence.

A core bundle of productions was prepared and shared with the agent for the claimant and the Sheriff. There is nothing worse when your production numbers don't match up, especially with the Sheriff's copy! But the WebEx platform does have a share screen function which is helpful when referring to productions as all parties are able to look at the same document at the same time.

Following the evidence and legal submissions, the case was adjourned until after lunch. We all signed back on to WebEx at 2pm for the Sheriff's decision and 5 minutes later, I was signed off, ready to begin working on something else.

Although, the suitability of virtual hearings will vary on a case by case basis. I thought this case was well suited to a remote hearing. Essentially it was a straightforward dispute on liability and a lot of non-contentious issues such as the vehicles involved, the location, damage and photographs had all been agreed beforehand.

All in all, it was a success! I had been planning on a dry-January but 27 days in, given the successful outcome and the fact it was my birthday, I couldn’t not have a little celebration!