Welcome to the next edition in our series of 'Lawbytes’ Takeaways' where Sandra Piaskowska, Solicitor and Construction Lawyer talks about the impact of Covid-19 on the Technology and Construction Court in Birmingham and provides an insight into the judge's perspective on working remotely.
She covers the following questions:
Are court users experiencing any delays as a result of the impact of Covid-19? If so, what sort of hearings/matters are being delayed and for how long approximately?
There is no delay in obtaining hearing dates compared with the position before the pandemic.
As far as work that does not require a hearing is concerned, my clerk, Sue Thomas, and I are seeking to ensure that there are no delays.
To avoid delay in processing any work, it is best to communicate with the TCC electronically. Communications by CE File or by email to clerktohhjwatson@justice.gov.uk are dealt with promptly. If County Court work is sent to Birmingham Civil Justice Centre on paper and not clearly marked as TCC work, there can be some delay. To avoid that, it is best to send documents to court electronically by email to clerktohhjwatson@justice.gov.uk wherever possible. If, for some reason, it is not possible to do that, it is best to let Sue know in advance that something is being sent to court on paper, so she can seek to minimise any delay.
Do hearings take place remotely or in person? If remotely, what is the court’s preferred method of conducting remote hearings? How effective are such hearings? If a mixture, how are the circumstances of each hearing decided?
Currently hearings are taking place entirely remotely by telephone or by video, using Skype for Business or Microsoft Teams. Some parties prefer video hearings and some prefer telephone hearings, particularly if advocates are working from home and do not have reliable internet connections. I am happy to accommodate the parties’ preferences.
Hearing bundles are entirely electronic. Where large hearing bundles are required, they can be filed by sending a link to a file sharing platform so that I can download the bundle.
Are trials taking place remotely? If so, what are the challenges, if any, of conducting trials remotely?
Currently, trials are taking place by Skype for Business or Microsoft Teams. I have heard several long and complicated trials in this way. I have not found they take any longer than trials in the court building. My initial concern that it may be difficult to assess a witness’s credibility remotely have been allayed by my experience. It is possible to have the trial bundle, my note of the hearing and the video on the same screen, and I have found no difficulty in observing the witness’s demeanour remotely. If anything, it is easier to observe the witness and make a note of the evidence at the same time on screen than it is in a courtroom.
The challenges for remote trials are:
- The quality of the internet connection of the participants. This has not yet proved a problem in the trials I have heard remotely, but it would be a problem if a witness or advocate had an unreliable connection.
- The quality of the electronic trial bundle. The bundle needs to be tabulated and paginated. It is also preferable for it to be capable of being word-searched. It helps if the pdf page numbers match the pagination at the bottom of the page, so that anyone who wishes to print the bundle has the same page numbers as those using the electronic bundle. In my experience, it is much quicker to navigate a well prepared electronic bundle than a paper bundle.
- Difficulty for the parties in giving instructions to advocates during the trial. This is addressed by my directing that anyone may interrupt to make me aware that they wish to give instructions and my adjourning briefly to allow time for instructions to be given.
- The fatigue from working on screen for long periods. Most people find it tiring to concentrate on a screen for long periods. I have found taking short mid-morning and a mid-afternoon breaks helps to alleviate this problem.
When Covid-19 restrictions are lifted, will you want to retain any practices that you have developed during the pandemic?
I will listen to the views of court users. However, subject to those, my own view is that it is likely that many hearings will continue to be remote, particularly where the parties or their representatives have to travel some distance to court. I suspect that many adjudication enforcements, interlocutory applications and CCMCs will continue to be heard remotely. I am also willing to continuing to hear trials remotely where the parties prefer that.
I am likely to ask for all bundles, even for hearings in the court building, to be electronic, unless there is a particular reason why the parties wish to use paper bundles, as I have found them to be preferable to paper bundles, particularly for long and complex cases with large bundles.
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