UK & Europe
The impact of Covid-19 on travel restrictions and medical concerns means that more and more virtual trials are likely to take place, in order to avoid adjournments which inevitably create delays and backlogs in the court system.
The trial itself will be conducted in largely the same way as an in-person trial in a court room. A virtual court room is created by the use of a suitable video conferencing platform, which the parties will agree and set up in advance of the trial. In the virtual court room, the judge, counsel, witnesses, interpreters and transcribers can see and hear each other. All other parties, such as clients or solicitors, can observe the virtual trial but cannot be seen or heard in the virtual court room.
Each participant joins a virtual testing room at the beginning of each day for final checks on their video and audio connections, before being admitted to the virtual court room. There is likely to be phased entry to the virtual court room, with transcribers and interpreters being tested and admitted first, followed by counsel, and finally by the judge. Witnesses are added to the virtual court room, via the testing room, when they are called.
Witnesses should be allowed the choice of taking an oath, without a holy book if they do not have a copy available, or affirming. Trial bundles that are easy to use electronically are essential for the smooth running of a remote trial.
In addition to the virtual court room, it is important to ensure that there is a separate means of communication for legal teams to discuss the trial as it progresses. For example, by setting up private video/telephone conferences or agreeing communication by text.
However, an emerging risk issue in remote hearings, is ensuring that text, Whatsapp group, emails or Teams chat messages are not seen by the witness whilst they are giving evidence. In a physical court room there is little risk of this (although shaking of heads across the court room is possible and might result in admonishment from the judge). However, in a remote trial, a group chat function with all of the witnesses (including or excluding the lawyers) is probably not a good idea; if the witness on oath sees messages whilst they are giving their evidence, this creates the risk of contempt of court, or perverting the course of justice. At the least, it may involve informing the judge and the parties of the content of messages which may have affected the oral evidence. We recommend you consider carefully what group chat functions will be set up for use.
In some cases, the eradication of travel time and increased availability to give evidence, may outweigh the benefits of an in-person trial. That being said, virtual trials are likely to be less efficient than in-person trials as communication is more difficult and is sometimes interrupted by technical difficulties. In addition, the lack of flexibility in the ways legal teams communicate, including with each other, can never replicate real time communication.
In SC (a child suing by her mother and litigation friend AC) v University Hospital Southampton NHS Foundation Trust  EWHC 1432 (QB) Johnson J ruled that a (liability only) trial could proceed in person during the pandemic and said
“A hearing that is wholly remote lacks many of the features and benefits of a hearing that takes place in court. The solemnity, formality and focus of the courtroom is not easily replicated by a remote hearing. More importantly, the complex multi-layered human communications and observations that take place during a substantial witness trial are significantly impeded when the hearing is conducted remotely…''.
Johnson J ruled that a remote hearing, whilst possible, would be undesirable in that case having regard to the likely length of hearing, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence. However, as the second lock-down begins now to take effect, 10 months since the start of the pandemic, the need to progress civil hearings within a reasonable timeframe may begin to shift the balance towards remote trials too.
At Clyde & Co our health and social care lawyers have lots of experience in attending remote hearings around the UK, including in the County Court, High Court and Coroner’s Courts. We have a dedicated Guide for Remote Hearings. Do get in touch if you would like a copy of our guide, or to discuss one of your hearings.