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Inside the UK’s longest remote hearing

3 Hare Court’s Simon Davenport QC and Tom Poole along with Humphries Kerstetter’s Toby Starr and James Russell give their thoughts on working inside one of the largest virtual trials under the new Covid-19 court regime

After 25-days the trial of One Blackfriars Limited (in liquidation) concluded in July 2020. The Applicants were represented by Simon Davenport QC and Tom Poole of 3 Hare Court and instructed by Humphries Kerstetter. The five-week liability and quantum trial (professional negligence claim against administrators worth £250m) was the subject of two PTR orders, providing for it to be heard fully remotely each day comprising two sessions of two hours each (10:30-12:30 and 14:00-16:00). The trial day was ordered to be punctuated by stenographer breaks which lasted around 10 minutes. Typically the hearing day ended with a 16:20 finish.

Each party had a day to open orally (and respond to each other’s written opening), closing submissions were in writing and each party had a right of reply (in writing). Four lay witnesses and 13 expert witnesses gave evidence. The trial was broadcast publicly online by Vimeo and (usually a couple of seconds ahead) participants joined by Zoom call.

Subject only to technical breakdown or other exceptional circumstances, there were fixed allocations of time for both lay and expert witnesses, which arbitration practitioners are used to but which changes the nature of the exercise for many court practitioners. The parties in this trial coped, not an easy achievement given the significant amount of material and the inevitable varying pace of various witnesses’ answers.

The parties’ solicitors were required to liaise regarding the practical and technological arrangements to enable the trial to be fully remote including: (i) identifying the locations from which each of the factual and expert witnesses intended to give evidence and the quality of the broadband connection in that location; (ii) pre-trial testing; (iii) the proposed platforms for video communication and document display; (iv) contingency planning (e.g. back-up trial bundle/4G dongles). The electronic bundle needed testing for use in the virtual hearing set-up (where annotated copies of documents do not show publicly) and for hyperlinking. 

Aside from pre-trial testing, the process also included fitting hardware in witnesses’ houses such as additional screens and better or back-up broadband or dongles. Nonetheless, some of the witnesses during their evidence had to move positions to get stronger connections. Ironically, there was a better connection from the BVI than in Surrey.

The parties ultimately agreed to use Sparq for the provision of hardware and Opus 2 for the provision of the virtual hearing service including presenting and transcription.

During trial Simon Davenport QC, as lead advocate, had five screens open – one screen provided by Sparq which was a MacBook Pro, linked into one other screen with access available in case of need without any physical intervention. The MacBook Pro screen showed the participants in court, namely the judge, the witness, and lead counsel for the respondent; the second screen showed a document as it would be shown ‘clean’ to the witness. His remaining screens, by using the duplicate button were able to be used for showing ‘follow presenter’ which was the marked-up version of the same document being presented to the witness and using ‘Realtime’, following the transcript with the right-hand column serving as an ‘intra-chat’ between the legal team and clients. This latter function points the way to far better court and arbitration use of lawyers in future – with far more productivity to be expected from lawyers able to communicate with a smaller group within a court or hearing room itself. 

The system was easy to use, dependent upon the speed of the presenter, which was generally very good. There were occasional glitches, but they were few and contributed probably to no more than one hour lost time throughout the whole trial.

Simon Davenport QC said that document presentation was good and fast but he would have liked the witness to have been able to scroll down through a document once shown it. A witness can flick through a document in paper whereas this was not possible on the Opus 2 system; it would be a welcome improvement if a witness could take possession of a document once shown it so that they can find something they wish to draw attention to themselves or better understand the document.

Core bundles did not prove to be particularly useful given the existence of the electronic bundle; inevitably the hardcopy core bundle did not completely match up with the electronic version. Core bundles may be best reserved to use in paper trials.

Humphries Kerstetter said much more fee earner time was spent managing the remote trial than on a physical trial and an additional fee earner was brought on the case to assist solely with the remote aspect of the trial.

The witnesses’ feedback was positive after the event, having been concerned ahead of the trial. Comments referred to time spent on setting up and testing the equipment and the sufficiency of their bandwidth and worry that this would not be fully realised until the actual trial. During the trial, the main concern related to presenter control of documents. There was no feedback suggesting an objection in principle to conducting the trial from home. A number of participants commented that it was tiring via screen and there was some feedback comparing negatively with a real court interaction with the questioner.