‘Do not wait until the last minute to tell your client what will happen at their virtual hearing’

For those readers old enough to remember the 1980’s cartoon ‘The Trap Door’, the reference needs no introduction. For those however of a newer vintage The Trap Door was a three-dimensional plasticine animation featuring ‘Berk’, a blue creature who lived amongst a collection of other monsters in a mystical castle. Berk served ‘The Thing’ upstairs. The advice for Berk, given at the outset of every episode, was not to open the trap door. Every time Berk opened the trap door there was a disaster.

I today received the first supplement to the 2021 edition of the White Book. Naturally, a parallel is drawn between the opening of the White Book and Berk opening the trap door: disaster will follow. I had a passing thought about conducting virtual hearings going forward, and then the trap door blew open.

At page 66 of the supplement, there is a new Practice Note:

Witnesses Giving Evidence Remotely 32PN.1.

This reads as follows:

1. In a number of cases in the recent past, the issue has come up in relation to witnesses giving evidence by video link or other remote means from a foreign jurisdiction, that permission may be required from the local court or other authority in the foreign jurisdiction for the witness to give such evidence remotely to a court in England and Wales. It is for the party calling the witness to ensure that such permission, if required, is obtained in good time for the trial or hearing at which the witness is to give evidence and to inform the court that such permission has been obtained. This is already made clear in annex to Practice Direction 32 dealing with video conferencing. Paragraph 4 deals specifically with the need to obtain permission from the relevant court or authority.

2. In order to avoid unnecessary delays or disruption to trials or hearings, it is directed that, in any case where there is a pre-trial review (PTR) a party calling a factual or expert witness remotely should have obtained any necessary permission by the date of the PTR and should inform the court accordingly at the PTR.

3. In cases where there is no PTR, a party calling a factual or expert witness remotely should have obtained any necessary permission by the time of filing the pre-trial checklist and should record in the pre-trial checklist that the permission has been obtained.

This Practice Note was issued by the Chancellor of the High Court on 11th May 2021.

At Annex 3 to Practice Direction 32, some useful guidance is given as to what should be borne in mind when there is a video hearing. The guidance is 21 paragraphs long and is very useful reading to any lawyer who is conducting a case through video conferencing.

Inevitably, a lawyer who is running a case will be faced with a scenario where their client either wants or does not want to have a hearing conducted virtually. That lawyer would be well advised to look at paragraph 2 of the guidance. What will be seen is that the convenience of using video conferencing should not be allowed to dictate its use. An argument about whether the court can properly control a witness, and whether or not video conferencing will be beneficial to the efficient, fair, and economic disposal of the litigation is likely to carry far more weight.

Paragraph 4 of the guidance sets out some basic considerations to keep in mind when a witness is in another jurisdiction. In a family case I am currently working on, a psychologist is out of the jurisdiction and conducting assessments via Zoom. From a lawyer’s perspective, one should not assume that all witnesses in a case are in this jurisdiction. At the very least, one would be well-advised to ask the question of your client/witnesses, ‘are you in this jurisdiction and will you be during evidence?’

Paragraph 8 reminds us that the court’s permission is required for any part of any proceedings to be dealt with by way of virtual conferencing. Although current practice in the pandemic is that many (if not most) hearings are virtual, we still require the permission of the Court for hearings to be virtual. If in doubt, make enquiries with the court.

The taking of the oath can be surprisingly difficult via video conferencing. The practice of convenience in the family and civil courts, from my experience, is that an individual – even if that individual would normally swear on a holy book – is simply affirming to tell the truth. A lawyer should be familiar with the wording of the affirmation, and if a client would prefer to swear on a holy book, that client should be given ample notice to obtain a copy.

Paragraph 16 of the guidance sets out a potential difficulty when a witness is in another jurisdiction. Namely, that some countries may require an oath or affirmation to be taken by a witness in accordance with local custom rather than the usual form of oath or affirmation used in England and Wales. Do not make these enquiries on the day.

Paragraphs 19 – 21 of the guidance set out how the virtual hearing should be conducted. In essence, we are told that as far as possible we should try and keep hearings to as close as possible the format we would expect in a courtroom. By necessity, my colleagues and I have developed techniques and ways to ensure that, as far as possible within the rules, hearings run smoothly.

If you are currently dealing with a virtual case or believe that a virtual case may appear in your diary in the future, and you would like any assistance on this or any other legal matter, please look at my other articles on case conduct, or contact clerks@becket-chambers.co.uk