Out-Law / Your Daily Need-To-Know

Given the restrictions in place as a result of Covid-19, the vast majority of hearings in the courts in England & Wales and in Scotland are currently being conducted remotely. While rapid change has been driven by the pandemic, remote hearings are likely to remain a feature of the litigation landscape even once restrictions have been lifted.

This guide provides an overview of what those attending a remote, or 'virtual', hearing should expect.

What is a remote hearing?

A remote hearing is one conducted by either telephone or video conference. Telephone hearings are principally used for simpler procedural hearings, while video conferencing is used for more substantial or complex hearings, including some case management hearings and applications/motions, as well as trials and appeals. In Scotland remote hearings are yet to be used for hearings involving witnesses, but there is provision for this.

While the use of telephone conferencing has been common for certain types of hearing for some time, video hearings, particularly those involving witness evidence, are a newer development. This means that judges and court users are navigating some new challenges.  However, experience of these hearings so far has broadly been positive.

How to join a remote hearing

In most cases, the court will set up the hearing and send the parties a link or dial-in details, together with any associated passwords, to join. For video hearings, the English courts are generally using Skype for Business, although they are rolling out a new platform called Cloud Video Platform (CVP). In Scotland, courts are generally using WebEx. 

It is not necessary to have a licence for these products or any specific device in order to join a hearing using a link provided by the court. Where Skype for Business is used, for example, participants simply download a free Skype app on a laptop, tablet or other device and click on the link provided to join the hearing. 

It is important to do this in good time before the hearing, so that technical problems do not delay the start. Once all parties and legal representatives have dialed or logged into the hearing, the judge will be invited to join and the hearing will begin in earnest.

Preparation for a remote hearing

For video hearings in particular, significant planning, testing and collaboration between parties is necessary. As part of this, we will generally arrange a test call with the court and all other participants in the days preceding the hearing. It is helpful if participants, particularly witnesses, do this test call from the setting they will be in for the hearing itself – further on this below.

It will also be necessary to agree various aspects of how the hearing will proceed with the other parties and the court, and sometimes set this out in a protocol for the hearing. This might cover issues such as who is to be visible and audible during the hearing which, generally, will only be the judge, advocates and any witnesses or experts while giving evidence, how advocates can make interjections when another person is speaking, and how the oath or affirmation is to be taken by witnesses. 

We will also discuss with clients how they can communicate with the legal team, including advocates, during the hearing. There are a range of options for communications within the team, including conference calls, email, instant messaging and specialist electronic bundle software which includes private chat functionality. Of course, where telephone is used for such communications, all involved must be careful to mute their connection to the hearing, so that sensitive discussions are not overheard by other parties or the judge.

Where parties and witnesses are located in different parts of the world, it will be necessary to agree an approach to the challenges posed by different time zones. This will need to accommodate, as far as possible, the need both for witnesses to give evidence at an appropriate time of day and for clients and key witnesses to hear evidence given by others.

Practical considerations

The following preparations need to be made by anyone attending a remote hearing:

  • Ensure that you have adequate computer equipment, a sufficiently strong and stable internet connection, and are able to access the relevant platform for the hearing – for example, by checking it is not blocked by your firewalls. It can be useful to have more than one screen or device. The second screen or device can be used to display the electronic bundle of documents which will be referred to during the course of the hearing. By installing the relevant app for the hearing on the second device, it can also serve as a back-up in case of problems with the main device. We can discuss requirements with you and source additional equipment if needed. Where possible, arrange for IT support to be on stand-by to help with any difficulties.
  • Make sure you have all relevant documents to hand for the hearing.
  • Set yourself up in a quiet, private space where you are unlikely to be interrupted. It is particularly critical to avoid interruptions if you are giving evidence. Make sure you have tested the internet connection in that particular space to ensure it is not an area of poor connection.
  • In a video hearing, if you will be visible on screen at any time, for example as a witness, consider your positioning and background. Ensure your face is not in shadow, and apply a neutral background within the software or position yourself in front of a plain wall. You should wear suitable court attire, such as a suit or jacket.
  • As if you were in a physical court room, you are only permitted to drink water and must not eat while the hearing is in progress.
  • Mobile phones and any other applications running on devices must be muted.
  • In general, unless you are acting as an advocate or giving evidence, your microphone should be on mute and, in a video hearing, your camera turned off.
  • It is a contempt of court to make any recording of a hearing, whether of the audio or, for example, by taking a screenshot during a video hearing, without the court's permission.

Further considerations for witnesses

Witnesses must particularly observe the above points about positioning, dress, food/drink and silencing of devices. In addition:

  • Witnesses will be required to swear an oath on a holy book or scripture or make an affirmation that the evidence they will give will be the truth. It is for a witness to choose which of these options they prefer. Where you choose to swear on a holy book or scripture, you will need to have a copy of this with you.
  • When giving evidence, it is critical that you are not in communication with any other person, whether face-to-face or electronically. You are also not allowed any notes or papers, whether hard copy or electronic, in front of you when giving evidence, other than the hearing bundle – likely in electronic form – which has been agreed between the parties. These rules apply for the whole period from taking the oath/affirmation to the conclusion of your evidence, including during any breaks in the hearing. This includes any overnight break, if your evidence is not concluded within a single day. You must not, therefore, discuss your evidence with anyone, including family members, during any such breaks. You may be asked to confirm your compliance with these rules to the court.

If a witness will be giving evidence through a translator, additional arrangements will be needed.

Recordings and publicity

Unless the court has ordered that the hearing will take place in private, remote hearings are like traditional hearings in that they are accessible to the public. The most common mechanism for making remote hearings public is that a member of the public or press may request details from the court to join the hearing.

The court will also make a recording of the hearing. As noted above, it is prohibited for anyone else to make a recording of a court hearing unless the court has expressly given permission for this.