Stobbs' Litigation team shares their recent experience, acting in a virtual hearing before three Lords Justices in the Court of Appeal in time of Covid19.

The word “unprecedented” is seeing unprecedented frequency of use to describe the extraordinary situation affecting the globe currently, but there can be no doubt that, in most of our living memories, disruption of the nature and extent of that currently being encountered has never previously been experienced. 

The Covid-19 lockdown is impacting on every aspect of our daily lives, and the justice system is not immune to this, as Chris Sleep (IA Director) and Will Haig (IA Executive) from Stobbs’ litigation team recently found out, acting in a "virtual” hearing before three Lords Justices in the Court of Appeal.

In response to the Covid-19 crisis, on 20 March 2020 the Judiciary of England and Wales issued the Protocol Regarding Remote Hearings, with the intention that it would be followed “wherever possible” in civil proceedings (other than in the Supreme Court). The Protocol is designed to act as basic guidance, and should be applied flexibly, bearing in mind the requirements of the CPR and the Judge’s inherent jurisdiction to determine all issues in the case and give directions on case management.  As might be expected, given the fast-moving developments in responding to the Coronavirus outbreak, the practical measures required to implement the Protocol has been a steep learning curve for both legal representatives and the Court alike.

On 31 March 2020, Stobbs acted for the Appellants in one of the first remote hearings in the Court of Appeal since the introduction of the Protocol – in what will create the leading authority in England & Wales on the test to be applied for considering an injunction to restrain solicitors from acting against former opponents where they are in possession of confidential information.  We await the Judgment of the three Judges - Lord Justice Richards, Lord Justice Arnold and Lord Justice Flaux.

As solicitors for the Appellants, Stobbs was tasked with arranging the remote hearing in line with the Protocol and the directions of the Judges. In practice, this involved preparing bundles in both hard copy and electronic form, setting up a virtual "courtroom” via video link using Zoom and recording the hearing for provision to the Court.

Whilst there was much trepidation by all attendees, the technology worked very well and (other than a brief period during which internet connection issues required Lord Justice Flaux to participate by telephone, rather than by video link) the Lords Justices and Counsel could be clearly seen and heard throughout the proceedings. The remote hearing technology also allowed solicitors, clients and members of the press to attend from at least three different jurisdictions, resulting in a significant saving in travel time and cost.  In this case, it is very unlikely that the parties would have attended had it not been possible to do so remotely. However, as “host” of the virtual hearing, it proved necessary to closely monitor all attendees to ensure that (other than Counsel and the Lords Justices) microphones and cameras were disabled to avoid inadvertent disruption to the hearing. This is an issue which could easily be resolved at a software level, and we welcome the Court’s flexible approach to different software platforms for remote hearings.

Whilst remote hearings are still very much in the experimental stage in the Courts, they have for some time been used to great effect by the UKIPO and the EUIPO. Once the current necessity for remote hearings has passed, and with further development and refinement of the technology and court processes, we strongly suspect that virtual hearings will become far more commonplace, given the clear benefits in saving cost, time and resources for both the Court and parties to litigation.  This may well be one of many ways in which the Covid-19 crisis leads to enduring changes in how we work.

If you are interested in this topic and would like to discuss further, please contact Chris Sleep at chris.sleep@iamstobbs.com.