Remote hearings present unique challenges, says Clarke Willmott

The explosion in “remote” court hearings since the onset of the Covid-19 pandemic has led to some “innocent mishaps” and “over-confidence” among participants, according to a leading debt recovery lawyer.

The vast majority of court proceedings have been conducted via video or phone conferencing since lockdown began last March.

And Sophie Kemp, a solicitor and supervisor in the debt recovery team at national law firm Clarke Willmott LLP, says the less formal court environment of the past year has presented some unique challenges.

“In the civil section of HM Courts and Tribunals Service, remote hearings for small claims prior to Covid-19 were almost non-existent,” she says.

“Face-to-face hearings before a district judge were standard and carried with them the formality that one would expect from a judicial process. The day at court, with its formality, sense of occasion and an appearance before a district Judge could sometimes be a daunting experience.

“However, the vast majority of hearings are now taking place remotely, either by video or telephone conference, and this has produced a number of innocent mishaps as well as over-confidence among some parties.

“I am sure most people are aware of the hearing in Texas where the lawyer was unable to remove a cat filter from his Zoom profile and felt the need to clarify with the Judge that ‘I’m not a cat.’  We have also heard of cases where an advocate was putting questions to a witness, and she could hear what she thought was a car indicator. She asked the witness if they were driving whilst trying to give evidence. The witness confirmed they were driving to a supermarket and thought it was reasonable to be able to drive and give evidence at the same time.

“Meanwhile we’ve heard of a case proceeding by way of video hearing where a party was addressing a Judge as ‘my flower’ and ‘petal’ and continued to do so despite being warned.

“The challenges of remote hearings are not confined to the witnesses. In the middle of a video hearing, an advocate’s child burst into the room singing at the top of their voice. This is a situation that most will be sympathetic of nowadays and all parties, including the judge, luckily found it amusing and were swiftly able to continue the hearing once the rendition was over.

“But it is not all light-hearted and innocent mishaps. In one case a party took offence at being cross-examined and became rude and abusive to the opposing advocate and the judge, continuing to shout at them. The judge raised this as an issue and even took a five-minute recess so that the party’s advocate could telephone him to ask him to calm down.

“This is sadly something that district judges may have occasionally experienced in face-to-face hearings, but it does raise the question whether remote hearings make it easier for parties to react in this way, and if this will become more common with remote hearings.”

Sophie Kemp says the Government has provided guidance around remote hearings. For example, participants must choose a space that is quiet and private, and let people who share the space know that you must not be interrupted during the hearing. Participants must treat telephone and video hearings as seriously as if they were in a court or tribunal building, and during proceedings they should:

• only drink water
• not eat
• not smoke or use e-cigarettes
• follow the court or tribunal’s instructions
• be alone unless you have permission otherwise

Sophie Kemp says: “It is up to the instructed solicitor to make sure parties are aware of the government advice, rules and obligations in respect of remote hearings. Clear guidance should also be provided about court etiquette and the appropriate standard of conduct that is required, but as with the above cases, what happens if the parties do not take this on board?

“It is clear that all parties, including judges, are still getting used to remote hearings and the reality of how they proceed. It will be interesting to see if this develops into a common trend or whether there may be further, more rigid and enforceable rules brought in for attending remote hearings.”

Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.

For more information visit www.clarkewillmott.com