Virtual Hearings: A new era?

It is a Monday morning, I am sat at home at my desk, with a cup of tea in hand, waiting for the Judge (who is perhaps not quite as familiar with technology as some) to locate and then access his invitation to the Teams meeting, which was the Court’s chosen mechanism for this remote hearing. We wait in rather uncomfortable silence, whilst the usher assists him, each staring impassively at each other and I find myself contemplating how we ended up here.

Before we became all too familiar with the words “Covid-19” a Pre-Trial Review Hearing in London for me would have meant a 5.30am alarm call and a two-hour commute to court. This would be followed by at least two hours of waiting in court for your listing to be called by the Judge and the same two hour journey home, followed by several hours at night catching up on emails missed from the day.

There can be no doubt that the remote hearings are much more efficient, both in time, energy and from an environmental aspect. Ahead of my pre-trial review, we had a Zoom conference with Counsel and once the hearing was over, I spent the rest of my day dealing with other work. There is certainly a place for virtual hearings and the Courts can only be commended for adapting overnight to working from this virtual platform.

Some of the Judges are not used to technology at this level and have worked extremely hard, under difficult situations, to ensure that the public have been able to access the Justice system, even during the period of complete lockdown.

The virtual hearings have taken many forms and to a certain extent the type of remote hearing will depend on the Court’s preference. The Court have, during the pandemic, developed their own virtual cloud platform from which they can host virtual hearings and this is due to take precedence moving forwards.

However, this year of virtual hearings has not been without its difficulties, some technological, some human. One of my colleagues dealt most recently with a one-day hearing, which took place in the morning by way of Zoom, followed by a transition at midday to Microsoft Teams and then concluded by way of telephone in the afternoon. All arising from various technical difficulties experienced by one party or another.
The judiciary have reported various problems, most notably arising from the absence of structure and authority which Court provides. Where parties to the proceedings are safe in the comfort of their own home, Judges have found it increasingly difficult to maintain control over the virtual Courtroom. Reports have been made of parties to the hearing attending whilst in bed, in the car, or one particularly resourceful litigant attended his hearing whilst also carrying out his work as a plasterer.

On a more serious level, the family courts have expressed concerns about young mothers attending children proceedings to have their new-born child removed, from their hospital beds, or whilst alone at home. Such devastating decisions made remotely, seem cruel and do not sit well with any professional involved.

It is the removal of the human element of care and compassion which I miss most at hearings. As a solicitor, when your client is represented by a barrister, you take a back seat at the hearing. Your role is to support both counsel and more importantly the client. Many hours can be sat in a waiting room with your client whilst Counsel negotiates with their opponent and reassurance and guidance can be given to your client at that time.

In a Courtroom, tensions can rise. Submissions are made by one party which makes the other side bristle within indignation. When I am sitting next to my client in Court, I will often give them a quick shake of my head to say “don’t worry”. This reassurance cannot be offered in a virtual hearing where you are each stating directly into the camera.

Most importantly for the client, the pressures of Court, which often give rise to an early settlement, are completely removed on a virtual hearing. Nothing focuses the mind of a litigant more than facing the steely glare and scathing comments of a weary District Judge and having to encounter their former partner across the Courtroom. With a virtual hearing, the pressure is removed. The parties are comfortable in their homes and once the hearing has ended, they carry on with their day.

I feel that huge steps have been taken with virtual hearings and I hope that those with a functionary purpose will continue. However, these virtual proceedings should not ever replace the experience the Court can deliver in person.

By Rachel Watson

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