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Having recently completed the first remote Commercial Court trial (National Bank of Kazakhstan & Anr v. Bank of New York Mellon & Ors) and a virtual freezing injunction (Motorola Solutions Inc & Anr v. Hytera Communications Corporation Ltd & Ors), both of which took place on Zoom, Gayatri Sarathy shares some practical tips on the preparation for, and functioning of, remote hearings.
A. What happens when a hearing is fixed?
If you have a hearing listed in the upcoming months, it is important to first refer to the guidance published by the Court or Tribunal and proactively consider how the hearing will be undertaken. For example, paragraphs 12 and 13 of the Business and Property Courts’ Protocol Regarding Remote Hearings, indicates that the Court will propose whether and how a remote hearing will take place, with provision for the parties to make submissions if they disagree:
“12. The judges and their clerks will, in each case, where possible, propose to the parties one of three solutions:
(i) a stated appropriate remote communication method (BT conference call, Skype for business, court video link, ordinary telephone call, or another method) for the hearing;
(ii) that the case will proceed in court; or
(iii) that the case will need to be adjourned, because a remote hearing is not possible and the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time.
13. If the parties disagree with the court’s proposal, they may make submissions by email or CE-file, copied to the other parties, as to what other proposal would be more appropriate. On receipt of submissions from all parties, the judge will make a binding determination as to the way in which the hearing will take place and give all other necessary directions.”
In Motorola, the Judge, having considered the matter on the papers, ordered of his own motion that:
1. A remote hearing would take place and, if such a hearing could not take place in public, it was to take place in private pursuant to CPR 39.2(3)(g);
2. Each party must file a notification of attendance, with the identity of each person attending, the capacity in which they will attend, their email and telephone contact details;
3. The documents must be made available in electronic form in good time before the hearing, with the claimants to serve and file an indexed and paginated electronic bundle comprising the essential documents by a date agreed between the parties;
4. In addition to the electronic bundle, the core documents and key authorities likely to be referred to at the hearing, must be provided to the Judge in hard copy;
5. The vehicle for the remote hearing is Skype for Business, unless otherwise agreed and approved by the Judge. The attendees must sign in at or before 10am, for the hearing to commence at 10.30am, to ensure that any issues with the connection can be addressed before the hearing is due to begin.
One of the parties subsequently asked for the hearing to take place on Zoom, given their previous experience on the platform, which was approved by the Judge.
B. Which platform to use?
There are a number of platforms available for court hearings, e.g. Skype for Business, Zoom, Teams, GoToMeeting, WebEx or Starleaf. The parties opted for Zoom in both National Bank of Kazakhstan and Motorola, so I cannot speak to the relative merit of the other platforms. A glance at the Cause List for the Business and Property Courts reveals that hearings are taking place remotely by Skype, Skype for Business or Zoom.
Zoom worked remarkably well. It is serviced by Sparq (https://www.sparq.live/) technical specialists who ensured that the participants had the necessary hardware; that the system was properly tested prior to each hearing; and that all participants were able to join at the commencement of each session. The parties were responsible for the engagement of Sparq and met their costs jointly.
A member of the Sparq team was present in the remote hearing virtually, in the event of any platform-related issues. This was particularly useful in National Bank of Kazakhstan, where expert witnesses dialed in from home laptops in four different jurisdictions. An additional feature of Zoom used by the teams was the “Share Screen” function, which enabled counsel to “show” a document on screen to the Judge and/or witnesses.
How platforms are used will no doubt be refined. Sparq has already changed its practice by now supplying rental iPads to the parties which are pre-logged into Zoom in response to the potential risk of user data being compromised. The devices were delivered by courier and come with a 4G SIM card installed, which can be used as a back-up connection in the event of any Wi-Fi issues.
The day before the both hearings, Sparq conducted a test with the legal teams and the Judge. Our test runs were useful to enable the parties to familiarise themselves with the platform, in addition to requiring the participants to join the remote hearing at least 30 minutes in advance of the hearing.
C. Other preparations for the hearing?
Aside from arrangements for the hearing itself, other matters that legal teams might wish to give some thought to in advance of the hearing are as follows:
1. Documents: As set out above, the parties should agree the core and authorities bundles for the hearing, with an eye on which key documents will be provided in hardcopy, as early as possible. For both hearings, the Judge asked for hard copies of all, or key, documents before the hearing. The dates agreed between the parties should take account of the delays involved in engaging a courier.
2. Hyperlinked bundles: Investing time in hyperlinking bundles, including the indices of core or authorities bundles or within the text of electronic witness statements to documents, is time well spent.
3. Public hearing: Since 26 March 2020, pursuant to s.85A of the Courts Act 2003, the Court has discretionary powers to permit livestreaming. However, under CPR 39.2(g) and PD 51Y para 2, the Court may direct that proceedings are to take place in private where it is necessary to secure the proper administration of justice. In National Bank of Kazakhstan, Teare J directed that there be a live stream on YouTube, and that its details be provided on the Cause List. The links were also provided on the websites of the respective solicitors’ firms. The same approach was followed in Motorola. Please find Thomas de la Mare QC’s article on Public Hearings here.
4. Links to the hearing: For trials or hearings involving a number of parties, it is sensible to give some thought to the number of individuals intending to join the hearing. For National Bank of Kazakhstan, there were a significant number of participants: the Judge, nine counsel, three solicitors’ teams, witnesses, translators, transcribers, clients and Sparq. Zoom provided two links to ensure that the number of participants did not compromise the quality of the remote hearing: a link to the hearing for speaking participants and a private live link, distinct from the public YouTube link, for the remainder of the legal teams and clients.
5. Transcribers: For both hearings, the parties engaged Opus 2 in advance of the hearing. Opus 2 provided a transcriber to join the remote hearing and up to four logins details per legal team to access the live transcript. This is particularly helpful to follow live evidence given by witnesses and/or if there are any problems with the connection to the hearing. At the end of each day, Opus 2 provided the parties with a daily transcript. Also, in Motorola, the Judge’s clerk recorded the hearing for the Court and provided the parties with a copy of the recording.
6. Necessary arrangements for witnesses: If witnesses are giving evidence via video link, it is key to ensure in advance that (amongst other things): (1) they have sufficient hardware and software to be able to join the hearing; (2) they complete a test with the platform in advance of the hearing; (3) they have access to the bundles in either hardcopy or electronic form; and (4) they have copies of the oath or affirmation.
In another recent hearing in the Business and Property Courts, Burford v. London Stock Exchange, Mr Justice Andrew Baker held the 3-day trial on Skype for Business, without a livestream, and commented on the utility of a live transcript to ensure seamless pick-up where there were connectivity issues with S4B (which occurred approx. 1 or 2 times per day) and the practical difficulty of ensuring effective note-taking when running video software and electronic bundles.
D. How do you communicate with your legal team?
It is critical to establish a dedicated channel for communicating within legal teams in advance of the hearing. We set up a WhatsApp group, which I had open on a separate screen on WhatsApp web (https://web.whatsapp.com) for the entire duration of the hearing.
E. What about the hearing?
A few additional home set-up tips, to the extent they are not self-evident:
· ensure that you have a good video camera: an iPad in portrait mode worked well;
· to the extent possible, ensure that you are in a well-lit room that is away from disturbances (such as noisy children, lawnmowers etc.);
· make sure that those in your household are aware in advance about the days and times of your hearing;
· download the App, rather than using a web browser to access the App: it has fewer issues with functionality and Sparq will explain the different options (e.g. “gallery view” or “speaker view”) with reference to the App;
· dress for Court for both the test run and the hearing itself;
· sit for oral submissions; and
· check your background before joining the remote hearing.
During the hearing:
· if you are not speaking, turn off your video and microphone; and
· if you are speaking, turn off your microphone when you are not speaking.
In both cases, you will still be able to see the other participants and the Judge.
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