· Virtual
Hearing Protocol
· Platforms
· Logistics
· Advocacy
· Bundles
· Annex
3 of Practice Direction 32
Virtual hearing
protocol
The Civil Justice
in England and Wales Protocol Regarding Remote Hearings, 26 March 2020[1], states;
‘1. The current pandemic necessitates the use of remote hearings
wherever possible. This Protocol applies to hearings of all kinds, including
trials, applications and those in which litigants in person are involved in the
County Court, High Court and Court of Appeal (Civil Division), including the
Business and Property Courts. It should be applied flexibly.
2. … Whilst most court buildings currently remain open, the
objective is to undertake as many hearings as possible remotely so as to
minimise the risk of transmission of Covid-19.
3. The method by which all hearings, including remote hearings, are
conducted is always a matter for the judge(s), operating in
accordance with applicable law, Rules and Practice Directions.
Nothing in this Protocol derogates from the judge’s duty
to determine all issues that arise in the case judicially and in accordance
with normal principles. Hearings conducted in accordance with this Protocol
should, however, be treated for all other purposes as a hearing in accordance
with the CPR.
13. Available
methods for remote hearings include (non-exhaustively) BT conference
call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary
telephone call. But any communication method available to the participants can
be considered if appropriate.
14. Before
ordering a hearing by court video link, the judge must check with the
listing office that suitable facilities are available.
16. Judges,
clerks, and/or officials will, in each case, wherever possible, propose to the
parties one of three solutions:-
(i) a stated appropriate remote communication method (BT
conference call, Skype for Business, court video link, BT MeetMe, Zoom,
ordinary telephone call or another method) for the hearing;
(ii) that the case will proceed in court with appropriate precautions
to prevent the transmission of Covid 19: or
(iii) that the case will need to be adjourned, because a remote
hearing is not possible and the length of the hearing combined with a number of
parties or overseas parties, representatives and/or witnesses make it undesirable
to go ahead with the hearing in court at the current time.
17. If
the parties disagree with the court’s proposal, they may make submissions in
writing by email or CE file (if available), copied to the other parties, as
to what other proposal would be more appropriate. On receipt of submissions
from all parties, the judge(s) will make a binding determination as to the way
in which the hearing will take place, and give all of the necessary directions.
18. It
will also be open to the court to fix a short remote case management conference
in advance of the fixed hearing to allow for directions to be made in relation
to the conduct of the hearing, the technology to be used, and/or any other
relevant matters.
19. The
fact that a hearing is to be a remote hearing and, where possible, the
technological method to be employed, will normally be shown in the cause list.
20. The
clerk or court official, and the parties, will all need to log in or call in to
the dedicated facility in good time for the stated start time of the remote
hearing. In a Skype, Zoom or BT call, the judge(s) will then be invited in by
the clerk or court official.
21. The
hearing will be recorded by the judge’s clerk, a court official or by the
judge, if technically possible, unless a recording has been dispensed with
under CPR Part 39.9(i). The parties and their legal representatives are not
permitted to record the hearing. With the court’s permission, arrangements
can be made with privately paid for transcribers.
23. The
clerk, court official or the judge(s) must complete the order that is made at
the end of the remote hearing. The wording of the order should be discussed and
agreed with the parties.
24. The
parties should, if necessary, prepare an electronic bundle of documents and
an electronic bundle of authorities for each remote hearing. Each electronic
bundle should be indexed and paginated and should be provided to the judge’s
clerk, court official or to the judge (if no official is available), and to all
other representatives and parties well in advance of the hearing.
25. Electronic
bundle should contain only documents and authorities that are essential to the
remote hearing. Large electronic files can be slow to transmit and unwieldy
to use.
26. Electronic
bundles can be prepared in .PDF or another format. They must be filed on the
CE- file (if available) or sent to the court by link to an online data room
(preferred) or email.’
‘HMCTS telephone and video hearings during coronavirus
outbreak’[2] (18 March 2020, updated 30 June 2020) further
states,
· ‘For
video conferencing we have started using Skype for Business on HMCTS and
judicial systems. If you have a video hearing coming up, and you want to
join using your computer, you will need to download Skype meetings app for
your web browser. If you’re joining using your mobile, you’ll need to
download the Skype for Business app in your mobile application store. You will
receive instructions and a link to click to join the hearing, as a ‘guest’.
When you click on the link, you should follow the browser’s instructions for
installing Skype Meetings App. We recommend doing this as early as possible, to
be prepared for your hearing. At the time of the hearing, you must go to the
Skype Meetings App sign-in page, enter their name, and select “Join”.
· We
have increased capacity, undertaken testing, and are now introducing our ‘cloud
video platform’ (CVP) for hearings. CVP uses Kinly video conferencing software.
These videoconferencing rooms can be accessed through any laptop or video
device. We can also use bridging links to communicate with fixed endpoints that
use the Justice Video Service, in courts, prisons and police stations.
· Please
note, HMCTS does not currently support the use of other video conferencing
applications and therefore Skype and CVP should be used.
· Looking
ahead, we are expanding the capacity of our video hearings service, which has
been tested on a small-scale in specified civil, family and tax tribunal
hearing types. Further testing is underway in tax and property tribunals to
ensure this bespoke video hearing service is robust and can handle significant
volumes of hearings, as quickly as possible. No bespoke software is needed to
use the video hearings service, or join hearings in a CVP room.’
Guidance about
participation in a remote hearing is set out in ‘How to join telephone and
video hearings during coronavirus (COVID-19) outbreak.’[3]
Platforms
The COMBAR
Guidance Note on Remote hearings 12 May 2020:
https://www.combar.com/wp-content/uploads/2020/06/COMBAR-Guidance-Note-on-Remote-Hearings-2nd-edition-23-June-2020-002.pdf,
states:
‘19. A
number of alternative video conferencing platforms are available, but
only if the Court is prepared to approve their use in advance. These include
(in no particular order) Zoom, BlueJeans, Lifesize, GoToMeeting, WebEx,
Starleaf and others. Details of the technical requirements for these products
can be found as follows: 13 a) Zoom: https://zoom.us; 14 b) BlueJeans:
https://www.bluejeans.com; c) Lifesize: https://www.lifesize.com; d)
GoToMeeting: https://www.gotomeeting.com/en-gb; e) WebEx:
https://www.webex.com/video-conferencing; f) Starleaf:
https://www.starleaf.com.
20. In
each case, where it is proposed to use video conferencing technology it is
necessary to ensure that the video conferencing platform can be operated by
every participant in the trial.
21. As
a result, confirmation should be sought from the Court about its ability to use
the particular platform. Those enquiries should extend to an enquiry as to
whether the Court will need to be provided with additional hardware (e.g. a
standalone laptop). Enquiries of this kind should be directed to the clerk to
the Judge who will hear the case. Similar confirmation should be sought of
every other participant in the hearing. If and to the extent that there are any
issues with any participant’s operation of the platform, these should be
identified at the PTR.
22. Effective
operation of any video conferencing platform will depend upon the users’
internet bandwidths (both their upload and download speeds). The required
bandwidth for videoconferencing varies from platform to platform and may also
vary depending upon the number of concurrent users of the platform. The speed
of any individual’s broadband connection (i.e. the bandwidth available to that
user) will depend on factors including the time of day and the number of people
in the relevant household using the internet at the same time.’
Logistics
The generic
logistical issues to address, are highlighted in the COMBAR Guidance Note on
Remote hearings 12 May 2020: https://www.combar.com/wp-content/uploads/2020/06/COMBAR-Guidance-Note-on-Remote-Hearings-2nd-edition-23-June-2020-002.pdf
(from which the following recommendations have been extrapolated):
• The
parties will need to test the functioning of any applicable video conferencing
platform on their computer set-up in good time ahead of the hearing and it will
generally be sensible to undertake a ‘dummy run’ of the relevant platform with
instructing solicitors 48 hours prior to the hearing to ensure that the
relevant technological requirements for the hearing can be met.
• In
addition, a dummy run should be arranged with the clerk to the Judge hearing
the case.
• It will
be useful to liaise with the clerk to the Judge ahead of the hearing as to
whether the Judge would specifically prefer hard or electronic copies (or
both).
• The
success of a remote hearing is heavily dependent upon the relative ease with
which the participants can refer to documents at the hearing.
• Electronic bundles will therefore be the
norm.
• However,
it would be sensible also for the Judge and counsel to have available to them
hard copy bundles of the pleadings, and in addition the core bundle should
normally be produced in hard copy for the Judge and counsel.
• Any hard
copy bundles must be identically paginated to any electronic copies of the same
bundles.
• The parties
should liaise with the Judge’s clerk in good time before the hearing regarding
the delivery of any hard copy bundles.
• Experience
to date suggests that skeleton arguments have taken on increased importance
in remote hearings. That being so, it may be appropriate in some cases to
depart from the typical page limits that apply under the [applicable] Court
Guide and/or to ensure that the written submissions are provided earlier than
the dates prescribed in that Guide.
• It has been
observed that “remote hearings remain court hearings and the solemnity of
the occasion should be observed as closely as it is in a courtroom. Within
this context, and insofar as is possible, the decorum of a court hearing should
be maintained commensurate with the gravity and seriousness of the issues being
decided in a formal legal arena. Steps should be taken to avoid matters that
detract from the ordinary gravitas of a court hearing”.
• In keeping
with these requirements, advocates should dress as if they were attending
Court, should ensure (to the extent possible) that the background visible on
screen is appropriate for a Court hearing and should ensure that they are not
interrupted or distracted during the course of the hearing. The use of in-ear
headphones is permitted and encouraged if they assist with audibility.
• Useful
guidance on advocacy at remote hearings (and as to common technological
mistakes) has been published by the Inns of Court College of Advocacy,
https://www.icca.ac.uk/wp-content/uploads/2020/04/Principles-for-Remote-Advocacy-1.pdf.
• Technical
issues may arise in remote hearings. To the extent possible, steps should be
taken ahead of the hearing to agree how notification is to be provided of the
occurrence of a technical issue. For example, it may be agreed that the
participants and the Court will be alerted to the problem by telephone, text or
email.
• Judges and
other participants have observed that using technology to conduct hearings is
unusually tiring. In addition, participant may have caring or other
responsibilities that may create difficulty in attending during normal court
hours. Careful thought should, therefore, be given to the appropriate timing
and length of each hearing day and to the breaks that are required throughout
the day. It will normally be sensible to take a short break mid-morning and
mid-afternoon – and it will be necessary to do this where stenographers
and/or interpreters are involved.
• Counsel
will need to be able to maintain a separate line of communication with other
members of the counsel team and their instructing solicitors. The manner in
which this is done is not a matter of concern for the Court, but care will need
to be taken to ensure that the method of communication does not interfere with
the hearing (for example, through noisy notifications) and that the
communications are kept confidential.
• Counsel
should also ensure that their separate line of communication does not result in
“unauthorised transmission of an image of, or sound made by, another person
while the other person is viewing or listening to a broadcast” of a remote
hearing, contrary to Section 85B of the Courts Act 2003 (as amended by the
Coronavirus Act 2020).
• Moreover,
the normal etiquette of a Court hearing must be observed. You, your
solicitors or your clients may not be able to control whether or not their
behaviour is visible or audible – but, in any event, the fact that a hearing is
taking place remotely is not an excuse for behaving differently than you would
were you in Court. Please remember that the advocate can be seen at all times
(even when he or she is not making submissions).
Advocacy
Help the judge to navigate
his way around the contents of the electronic bundle.
When presenting your
submissions, your Skeleton Argument is your map:
‘Don’t read from it.
But do quote from
it.
Begin your argument
by capturing the bull’s-eye point in a neat opening sentence.
Then identify what
you say are the facts, pointing out where you have mentioned them in your
Skeleton Argument.
Now develop
where you say there is an argument with your opponent on the facts, and why you
should win it.
Explain how you suggest the law fits the facts as you suggest
they are. Identify where the arguments lie, and explain why your argument beats
the other side, reminding the judge of what is in the skeleton.
Take your time.’ (‘The Devil’s
Advocate, by Iain Morley QC (2009), Sweet & Maxwell, p.106).
In a virtual
hearing, facial expressions and gestures are even more apparent to the judge
than they are in the court-room. Advocates should therefore remember at all
times, that ‘Human beings are far more video than audio. The way we collect
most of our information is through our eyesight … Intent listening is something
we do with surprisingly rarity … What most lawyers ask the [Judge] to do in
court is to use [his] second best device for gathering understanding. And
[Judges] do it: on the whole they do it well. But since we don’t tie blindfolds
on them, they don’t switch off their best information gathering device… People
who have studied the psychology of communications have some terrifying
statistics for us lawyers. Examples:
• 60% of a
message is conveyed by body language and visual appearance generally.
• 30% of the message is conveyed by tone of
voice.
• Only 10% of a message comes through the
words used.
• Only 10% of
what people hear gets remembered. If, on the other hand they see something
connected with what they are hearing, as they are hearing it, they remember
50%.
Lawyers tend not to
know these statistics, just as they don’t seem to realise that they are
operating all the time in the Video dimension.’ (Common Sense Rules of Advocacy
for Lawyers (2004), by Keith Evans. The Capitol.net, p.8).
The following
general guidance is set out in ‘Principles for remote advocacy’,
published by the Inns of Court College of advocacy 2020:
• Judges and
advocates who already have experience with this practice consistently remark
that effective remote advocacy depends not on new skills. It rewards the
bedrock skills: a clearly articulated and logical case, supported by selective
use of authority and documents, and focused examination of witnesses. With
careful preparation and attention to those core skills, it is possible to make
remote hearings, in appropriate cases, highly effective.
• As far as
possible the online hearing should emulate a traditional hearing. This
advice applies to advocates and witnesses alike.
• Establish
a speaking protocol at the outset. This may involve participants, when
introduced, acknowledging the introduction by raising their hand rather than
speaking. This is preferable to a brief nod which may be imperceptible on small
thumbnail videos.
• You must
not record a hearing but be prepared to remind the judge to record the hearing.
• When not
speaking, press mute. All participants should do this when not speaking.
• When it
is your turn to speak, remember to unmute your microphone. Speak directly into
the microphone.
• Where
multiple devices are in use, all should be muted and only one un-muted when
required.
• Advocates
should avoid using headsets (combined over ear headphones and
microphone), since online hearings should emulate in-person hearings as closely
as possible. However, the use of discrete in-ear headphones is usually
permissible and can assist with preserving the confidentiality of proceedings.
When in doubt seek the guidance of the court or tribunal in advance.
• Avoid
setting your device to the highest volume, since this is likely to cause
feedback when you are speaking.
• Encourage
participants to raise their hand when wishing to interrupt a speaker, or
otherwise use the facility to do this on the software provided.
• Maintain
eye contact with the camera. This will ensure you appear to be looking at
your audience. The thumbnail image of the person you are speaking to may be at
the bottom of the screen, when the camera in your device is above the screen.
If so, this will give the appearance that you are looking down or away from
your audience.
• Ensure that
you are clearly visible by maintaining a reasonable distance from the camera,
to show your head and upper body. Too close in your image may blur and fill the
screen, too far and you will appear distant and detached from the hearing. Some
cameras zoom in and out depending on the movement of the subject. This should
be avoided.
• Advise
everyone to be mindful, if using Skype for Business that the camera records a
wider area than one sees on one’s own screen.
• If you are
using the camera on your laptop, typing when you are visible is liable to cause
the camera (in your image) to shake. Try to use a separate keyboard or a
separate camera mounted away from the laptop.
• Remember
that others are watching even if you cannot see them. In cases involving
multiple participants, thumbnail video images may appear on screen, but these
thumbnails often move off screen to allow participants to see the face of the
person talking, or the document being shared. Observers may also be present. As
such, often there are people present at the hearing who are not visible.
• Ensure that
you are well lit by natural or artificial light. Avoid sitting with your back
to a window or other light source. This can result in only your silhouette
appearing on the screen.
• Dress
professionally, but not in robes unless specifically asked to do so, and appear
as if attending the court or tribunal in person.
• Most
hearings take place with parties seated. If in doubt, check with the court. If
you prefer to stand, adjust your camera accordingly.
• Download
an app to enable you to mark up the bundle such as Acrobat DC or PDF Expert.
• Save and
keep all your work (including prep and bundles) in a GDPR-compliant cloud not
on your device. Whichever cloud you use, it is important to store documents
systematically so you can find them easily. Keep a clean duplicate of your
bundle, so that you have one clean bundle and one that is marked up. This way,
if the judge asks for a document to be handed up, you have a clean copy.
• The
numbers on the pagination can be quite small. Before a hearing, it helps to
expand them (and change them to a bright colour) so that you can see them more
clearly and move around the bundle more quickly.
• Use an
agreed indexed electronic bundle of documents which can be referred to between
relevant parties by section, page and paragraph number without the need to
share the document on the screen or to hold up physical documents.
• Minimise
the size of the hearing bundle. It is tempting, since the bundle is
electronic, to include anything at all that might conceivably be relevant.
Resist that temptation. Big files are harder to handle and cause all sorts of
other problems (e.g. rejection by email filters). That goes for authorities,
too, of course.
• Make
sure you can find documents you need at speed. Advocates are advised to have a
list of key documents, or a hyperlinked index. Bookmark critical documents.
Make sure all references in your notes are absolutely accurate and precise and
that references in the skeleton argument are to the pages in the electronic
bundle, not some historic paper version.
• You must
be able to provide, without delay, the reference to the documents to which you
want to refer. Always give the reference, not just a description, and give
people time to find the document.
• Make
sure you can access two documents simultaneously (e.g. on different devices or
windows). You often need both to follow a document that someone else is
referring to and find another document for your own purposes.
• Do not let
the difficulty in handling documents deflect you from using documents
effectively. In civil cases, documents are often very important. If you have a
point to make about the document you nearly always need to make sure that you,
the witness, and the judge all have that document in front of them. Summaries
are never effective.
• If you
unexpectedly need to share a document with the court or tribunal which is not
in the electronic bundle, but which cannot be made visible to all observers by
sharing on screen, agreement must be reached as to the appropriate channel of
communication to be used, e.g. sending the document to the court or tribunal by
email.
• Beware
that it is likely that rather more weight will fall on the written argument
than it does in typical hearings.
• Use the
written argument to provide a clear roadmap of the key issues and how you
expect to approach them.
• Use the
written argument to provide a way of finding any key document, especially if
you are dealing with a complex body of evidence. Recognise that it is harder to
follow a remote presentation, and that the judge may well need an aide memoire
that can be consulted before and after the hearing.
• Do not,
however, be tempted to shoehorn a mass of material of secondary importance into
the written argument. If anything, this is even worse when the oral hearing is
compressed, because it is likely to leave your written argument disconnected
from your oral presentation.
• Give
careful thought to which parts of the argument will require oral presentation
expansion, and how you are going to do that.
• Mark
documents in arguments for ease by agreeing a key with the other side e.g.
[1/1/1] = bundle 1, tab 1, page 1.
• Your
preparation needs to be more meticulous than it would be for a normal hearing.
In remote hearing, time is at a premium. Remote communication has less impact
and less subtlety than face-to-face communication.
• Write a
more detailed script for submissions and cross-examination questions than you
usually would.
• Anticipate
questions that the judge is likely to raise, or points that your opponent may
develop orally, and discuss them with your team in advance.
• Simplify
your arguments as much as you possibly can, remembering that if you “lose the
judge” you are less likely to notice that you have done so than you are in
court.
• A loss of
non-verbal communication (and aspects of ”style”) are lost when working
remotely. Concentrate on the substance.
• Brevity and
precision are key. In the event that either sound or video quality is
interrupted during a question or submission, repetition may be required, a
process far easier to complete with succinct questions or submissions.
• Aim to
present your case in a low-key courteous and measured way. Be careful not to
have too much mental overload during a hearing.
• Be prepared
for the fact that remotely conducted hearings are more taxing than a
conventional hearing. Do not be shy of asking for breaks.
• In a
remote hearing, a brief delay typically occurs between the video image of the
person speaking and their voice being heard by the court/tribunal and witness.
This connection delay may lead participants to believe a person has finished
speaking before they have, in fact, done so and is liable to result in
participants inadvertently speaking over one another.
• Do not
interrupt. Let a speaker finish before speaking. Be especially careful not to
interrupt a witness’s answer or a judge’s question.
• When you
are speaking, allow pauses for judicial questions. You may even want to invite
them.
• If you are
speaking and become aware that someone else is trying to speak, pause to allow
them to do so.
• Do not fill
pauses. Gaps between speakers (e.g. while waiting for a witness to answer) are
more common with remote communication than when you are together in court.
• If you
feel compelled to interrupt and “get to your feet”, you may want to raise your
hand to the tribunal as an indication of wanting to do so.
• If you
share your screen, be careful. When you share your screen, everything is
visible online, including pop-up notifications, screensaver photographs etc.
For safety’s sake, ensure your screen is clear and that notifications are
disabled. Documents can be shared without sharing your screen or (best)
referred to in an agreed bundle.
• You will
probably want to communicate with your own team but consider how this is best
done. Receiving a steady stream of emails and WhatsApp messages from many
different people is not helpful. Agree how your team will communicate but ask
for communications to be limited to what is really necessary and consider
channelling all communications through a single team member who can act as a
filter.
• When
leaving a hearing, even if going to another room, ensure that the microphone is
muted, and the video disabled until you return. Alternatively, you should sign
out of the meeting and sign in again upon returning.
Bundles
The COMBAR Guidance
Note also states:
‘If the bundles are
to be produced electronically, it is essential that appropriate thought is
given to the use of those bundles at the hearing. In particular (taking account
of guidance issued by the Supreme Court), the following approach is recommended
in all cases in which .pdf bundles are proposed:
a) only essential documents should be included in the electronic
bundles;
b) the electronic bundle should (unless unusually voluminous) be a
single .pdf file which is capable of being word-searched;
c) the .pdf file should be prefaced to by an index which contains
hyperlinks to the relevant documents and, where appropriate, relevant parts of
documents;
d) the electronic bundle should be paginated from first to last
page, regardless of whether multiple documents have been combined together (and
inclusive of any indices);
e) the default display size of all pages must
always be 100%;
f) wherever possible, text on all pages of the .pdf must be capable of
being selected and highlighted. Pages of text should not be formatted as images
[which may require scanned documents and images within a PDF to be processed
using appropriate Optical Character Recognition (OCR) software before the final
version of the PDF bundle is saved. Some PDF management software solutions
come with OCR capabilities inbuilt]
;
g) the “bookmarks” function must be used to delineate the location of
different documents within the .pdf file. The bookmarks should be labelled both
to identify the relevant document and to show the page number. Bookmark labels
should be neutral and descriptive only;
h) the resolution on the bundle should be reduced to about 200 to 300
dpi to prevent delays whilst scrolling from one page to another;
i) to the extent possible, hyperlinks should be used within the
electronic bundle and between skeleton arguments and the bundle;
j) where both hard copy and electronic bundles are produced, identical
pagination should be used in both bundles. This may mean in the hard copy
bundles, paginating indices etc. that appear at the beginning of the bundle.
Where a .pdf bundle
will be used in a hearing, advocates should consider obtaining and using .pdf
management software enabling search and personalized highlighting, annotation,
bookmarking and indexing of the .pdf bundle. Pdf management software solutions, with features relevant
to the creation of .pdf bundles including pagination and bookmarking, are
available for purchase: Examples include Adobe Acrobat Pro DC (for MacBook’s
and Windows machines) and PDF Expert version 7 (for MacBook’s and iPads).
Please note that all Judges of the Commercial Court have the basic version of
Adobe Acrobat which allows for searching, selecting, and highlighting text.
They do not have Adobe Acrobat Pro.’
Annex 3 of Practice
Direction 32
The taking of
evidence from witnesses by video link is addressed by the Practice Direction
to CPR Part 32.
Annex 3 of the PD states:
‘VIDEO CONFERENCING
GUIDANCE
This guidance is for
the use of video conferencing (VCF) in civil proceedings. It is in part based,
with permission, upon the protocol of the Federal Court of Australia. It is
intended to provide a guide to all persons involved in the use of VCF, although
it does not attempt to cover all the practical questions which might
arise.
Video conferencing
generally
1. The guidance covers the use of VCF equipment
both (a) in a courtroom, whether via equipment which is permanently placed
there or via a mobile unit, and (b) in a separate studio or conference room. In
either case, the location at which the judge sits is referred to as the
‘local site’. The other site or sites to and from which transmission is made
are referred to as ‘the remote site’ and in any particular case any such site
may be another courtroom. The guidance applies to cases where VCF is used
for the taking of evidence and also to its use for other parts of any legal
proceedings (for example, interim applications, case management conferences,
pre-trial reviews).
2. VCF may be a convenient way of dealing with
any part of proceedings: it can involve considerable savings in time and cost.
Its use for the taking of evidence from overseas witnesses will, in particular,
be likely to achieve a material saving of costs, and such savings may also be
achieved by its use for taking domestic evidence. It is, however,
inevitably not as ideal as having the witness physically present in court. Its
convenience should not therefore be allowed to dictate its use. A judgment must
be made in every case in which the use of VCF is being considered not only as
to whether it will achieve an overall cost saving but as to whether its use
will be likely to be beneficial to the efficient, fair and economic disposal of
the litigation. In particular, it needs to be recognised that the degree of
control a court can exercise over a witness at the remote site is or may be
more limited than it can exercise over a witness physically before it.
3. When used for the taking of evidence, the
objective should be to make the VCF session as close as possible to the usual
practice in a trial court where evidence is taken in open court. To gain
the maximum benefit, several differences have to be taken into account. Some
matters, which are taken for granted when evidence is taken in the conventional
way, take on a different dimension when it is taken by VCF: for example, the
administration of the oath, ensuring that the witness understands who is at the
local site and what their various roles are, the raising of any objections to
the evidence and the use of documents.
4. It should not be presumed that all foreign
governments are willing to allow their nationals or others within their
jurisdiction to be examined before a court in England or Wales by means of VCF.
If there is any doubt about this, enquiries should be directed to the Foreign
and Commonwealth Office (Legalisation Office) sopenquiries@fco.gov.uk with a
view to ensuring that the country from which the evidence is to be taken raises
no objection to it at diplomatic level. The party who is directed to be
responsible for arranging the VCF (see paragraph 8 below) will be required to
make all necessary inquiries about this well in advance of the VCF and must be
able to inform the court what those inquiries were and of their outcome.
5. Time zone differences need to be considered
when a witness abroad is to be examined in England or Wales by VCF. The
convenience of the witness, the parties, their representatives and the court
must all be taken into account. The cost of the use of a commercial studio is
usually greater outside normal business hours.
6. Those involved with VCF need to be aware
that, even with the most advanced systems currently available, there are the
briefest of delays between the receipt of the picture and that of the
accompanying sound. If due allowance is not made for this, there will be a
tendency to ‘speak over’ the witness, whose voice will continue to be heard for
a millisecond or so after he or she appears on the screen to have finished
speaking.
7. With current technology, picture quality is
good, but not as good as a television picture. The quality of the picture is
enhanced if those appearing on VCF monitors keep their movements to a minimum.
Preliminary
arrangements
8. The court’s permission is required for any
part of any proceedings to be dealt with by means of VCF. Before seeking a
direction, the applicant should notify the listing officer, diary manager or
other appropriate court officer of the intention to seek it, and should enquire
as to the availability of court VCF equipment for the day or days of the
proposed VCF. The application for a direction should be made to the Master,
District Judge or Judge, as may be appropriate. If all parties consent to a
direction, permission can be sought by letter, fax or e-mail, although the
court may still require an oral hearing. All parties are entitled to be heard
on whether or not such a direction should be given and as to its terms. If a
witness at a remote site is to give evidence by an interpreter, consideration
should be given at this stage as to whether the interpreter should be at the
local site or the remote site. If a VCF direction is given, arrangements for
the transmission will then need tobe made. The court will ordinarily direct
that the party seeking permission to use VCF is to be responsible for this.
That party is hereafter referred to as ‘the VCF arranging party’.
9. Subject to any order to the contrary, all
costs of the transmission, including the costs of hiring equipment and
technical personnel to operate it, will initially be the responsibility of, and
must be met by, the VCF arranging party. All reasonable efforts should be
made to keep the transmission to a minimum and so keep the costs down. All such
costs will be considered to be part of the costs of the proceedings and the
court will determine at such subsequent time as is convenient or appropriate
who, as between the parties, should be responsible for them and (if
appropriate) in what proportions.
10. The local site will, if practicable, be a
courtroom but it may instead be an appropriate studio or conference room. The
VCF arranging party must contact the listing officer, diary manager or other
appropriate officer of the court which made the VCF direction and make
arrangements for the VCF transmission. Details of the remote site, and of the
equipment to be used both at the local site (if not being supplied by the
court) and the remote site (including the number of ISDN lines and connection
speed), together with all necessary contact names and telephone numbers, will
have to be provided to the listing officer, diary manager or other court
officer. The court will need to be satisfied that any equipment provided by the
parties for use at the local site and also that at the remote site is of
sufficient quality for a satisfactory transmission. The VCF arranging party
must ensure that an appropriate person will be present at the local site to
supervise the operation of the VCF throughoutthe transmission in order to deal
with any technical problems. That party must also arrange for a technical
assistant to be similarly present at the remote site for like purposes.
11. It is recommended that the judge,
practitioners and witness should arrive at their respective VCF sites about 20
minutes prior to the scheduled commencement of the transmission.
12. If the local site is not a courtroom, but a
conference room or studio, the judge will need to determine who is to sit
where. The VCF arranging party must take care to ensure that the number of
microphones is adequate for the speakers and that the panning of the camera for
the practitioners’ table encompasses all legal representatives so that the
viewer can see everyone seated there.
13. The proceedings, wherever they may take
place, form part of a trial to which the public is entitled to have access
(unless the court has determined that they should be heard in private). If the
local site is to be a studio or conference room, the VCF arranging party must
ensure that it provides sufficient accommodation to enable a reasonable number
of members of the public to attend.
14. In cases where the local site is a studio or
conference room, the VCF arranging party should make arrangements, if practicable,
for the royal coat of arms to be placed above the judge’s seat.
15. In cases in which the VCF is to be used
for the taking of evidence, the VCF arranging party must arrange for recording
equipment to be provided by the court which made the VCF direction so that the
evidence can be recorded. An associate will normally be present to operate the
recording equipment when the local site is a courtroom. The VCF arranging party
should take steps to ensure that an associate is present to do likewise when it
is a studio or conference room. The equipment should be set up and tested
before the VCF transmission. It will often be a valuable safeguard for the VCF
arranging party also to arrange for the provision of recording equipment at the
remote site. This will provide a useful back-up if there is any reduction in
sound quality during the transmission. A direction from the court for the
making of such a back-up recording must, however, be obtained first. This is
because the proceedings are court proceedings and, save as directed by the
court, no other recording of them must be made. The court will direct what is
to happen to the back-up recording.
16. Some countries may require that any oath or
affirmation to be taken by a witness accord with local custom rather than the
usual form of oath or affirmation used in England and Wales. The VCF
arranging party must make all appropriate prior inquiries and put in place all
arrangements necessary to enable the oath or affirmation to be taken in
accordance with any local custom. That party must be in a position to inform
the court what those inquiries were, what their outcome was and what
arrangements have been made. If the oath or affirmation can be administered in
the manner normal in England and Wales, the VCF arranging party must arrange in
advance to have the appropriate holy book at the remote site. The associate
will normally administer the oath.
17. Consideration will need to be given in
advance to the documents to which the witness is likely to be referred. The parties
should endeavour to agree on this. It will usually be most convenient for a
bundle of the copy documents to be prepared in advance, which the VCF arranging
party should then send to the remote site.
18. Additional documents are sometimes quite properly
introduced during the course of a witness’s evidence. To cater for this, the
VCF arranging party should ensure that equipment is available to enable
documents to be transmitted between sites during the course of the VCF
transmission. Consideration should be given to whether to use a document
camera. If it is decided to use one, arrangements for its use will need to be
established in advance. The panel operator will need to know the number and
size of documents or objects if their images are to be sent by document camera.
In many cases, a simpler and sufficient alternative will be to ensure that
there are fax transmission and reception facilities at the participating sites.
The hearing
19. The procedure for conducting the
transmission will be determined by the judge. He will determine who is to
control the cameras. In cases where the VCF is being used for an
application in the course of the proceedings, the judge will ordinarily not
enter the local site until both sites are on line. Similarly, at the conclusion
of the hearing, he will ordinarily leave the local site while both sites are
still on line. The following paragraphs apply primarily to cases where the VCF
is being used for the taking of the evidence of a witness at a remote site. In
all cases, the judge will need to decide whether court dress is appropriate
when using VCF facilities. It might be appropriate when transmitting from
courtroom to courtroom. It might not be when a commercial facility is being
used.
20. At the beginning of the transmission, the
judge will probably wish to introduce himself and the advocates to the witness.
He will probably want to know who is at the remote site and will invite the
witness to introduce himself and anyone else who is with him. He may wish to
give directions as to the seating arrangements at the remote site so that those
present are visible at the local site during the taking of the evidence. He
will probably wish to explain to the witness the method of taking the oath or
of affirming, the manner in which the evidence will be taken, and who will be
conducting the examination and cross-examination. He will probably also wish to
inform the witness of the matters referred to in paragraphs 6 and 7 above
(co-ordination of picture with sound, and picture quality).
21. The examination of the witness at the
remote site should follow as closely as possible the practice adopted when a
witness is in the courtroom. During examination, cross-examination and
re-examination, the witness must be able to see the legal representative asking
the question and also any other person (whether another legal representative or
the judge) making any statements in regard to the witness’s evidence. It will
in practice be most convenient if everyone remains seated throughout the
transmission.’
[1]
https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-26_03_20-1-1.pdf.
[2]
https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak.
[3]
https://www.gov.uk/guidance/how-to-join-telephone-and-video-hearings-during-coronavirus-covid-19-outbreak#joining-by-cvp-skype-or-bt-meet-me.
