Remote Court hearings in the Pandemic - for your disputed Probate or Trust claim

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On 18 March 2020 the Lord Chief Justice advised that remote attendance should be the default position for court hearings.  Judges have been advised to utilise telephone and video hearings and Skype for Business has been installed on the Court laptops as used by the Judiciary and Court staff. 

There have already been a number of interesting cases that have arisen from the new virtual Court room experience.

i) Unlawful live streaming;

In Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2167 (QB) a libel trial took place remotely.  It took place physically in court but was relayed by Zoom to a second courtroom for the hearing to be viewed by the press and public.  It transpired that the Claimant's solicitor was streaming the hearing to various individuals outside of the Court building.  This amounted to misconduct as a breach of s41 of the Criminal Justice Act 1925, 29 of the Contempt of Court Act 1981 and also disobedience of a previous court order.

Whist it might seem like a simple click of a button, if anyone - lawyer, party to the action or private individual, acts in such a way as to breach the strict rules of the Court, they may expect to face the full force of the law against them. A court hearing conducted from home is still a real Court hearing and should be respected and treated as such.

ii) Appropriate arrangements for witness evidence in court;

In Navigator Enquiries Ltd v Deripaska [2020] EWHC 1798 (Comm) a long running property dispute contempt hearing took place in open court for over 4 days. Judge Baker stated that where a party is to give evidence remotely, "where he or she will be, and who (if anyone) will be with them, and why, should be discussed by the parties in advance".  The Judge also recommended that any arrangement whereby anyone is with the witness whilst giving their evidence should be approved by the Court.

Just because arrangements might be agreed by the parties does not mean that the Court will approve it.  It is for the Judge to decide on form and conduct - not the parties.  It does seem however that common sense is the order of the day and that sensible plans are likely to be acceptable by the Court. 

iii) Careless Court room Zoom housekeeping;

In a Court hearing in Re C (A Child) [2020] EWCA Civ 987, some of the participants attended physically in Court whilst others attended remotely.  The Appellant felt unwell and the Judge directed that she could finish her evidence remotely.  The Judge left the Court and her clerk took the Judge's laptop into chambers.  Although the laptop was closed, the live broadcasting link remained open.  The Judge was overheard by participants still connected to the hearing giving disapproving and inflammatory remarks to her clerk about the appellant.  The Appellant was permitted to appeal against the Judge's refusal to recuse herself from the case.

The Court of Appeal held that "a fair minded reasonable observer could not but conclude there was a real possibility of bias… where i)the issue in the proceedings could not be more serious and ii)the Judge had made highly critical remarks regarding the appellants honesty"- even though the remarks were made in private and not intended for broadcast to the court participants. 

Remote hearings in some form or another will certainly continue for some time into 2021 and it is hard to see a requirement across the board for a total return to a physical court room presence.

If you require assistance on a claim or wish to just talk through a legal matter then please do not hesitate to contact us at the Disputed Wills and Trusts Team on 01392 337000.

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