During the COVID-19 pandemic, remote working and a lack of in-person interaction with others has been normalised and actively encouraged. However, in the Government’s initial guidance in late March 2020, the Ministry of Justice confirmed that advocates and solicitors involved in court and tribunal hearings would be considered ‘key workers’ to allow for the continuation of the administration of justice. Whilst this has ensured that hearings have continued during the pandemic, the hearings themselves have been conducted in a variety of formats to adjust to the exceptional circumstances.

Prior to the pandemic, it was the accepted norm that substantive hearings before a court or tribunal would be in person with witnesses being required to give their evidence in Court save for exceptional circumstances. Naturally, the pandemic has impacted this norm in that court rooms were not in many circumstances considered COVID-safe and the required number of attendees at many hearings would not ensure compliance with social distancing. Therefore, remote hearings have often become the preferred format either in part (a hybrid hearing) or in full. This has given rise to case law where parties have objected to a remote hearing, most recently in the case of Bilta (UK) Ltd (In Liquidation) & Others v SVS Securities Plc & Others [2021]1.

The Case

The case involved a dispute between Bilta UK Ltd and the remaining active Defendant, Tradition Financial Services (“TFS”). It included factual disputes and allegations of dishonesty which the Court had to determine. This in part led to TFS applying for a postponement so that an in-person hearing could be held in early 2022. TFS stated in its application that three of the key witnesses giving evidence were reluctant to attend Court in person due to the new strains of the virus, and the final witness did not wish to attend on medical grounds. As the matter involved allegations of dishonesty that could impact the case, their reputation and future employability, TFS argued that the witnesses should be allowed to give evidence in person at a future hearing rather than remotely. The basis of their argument was rooted in the case of Re A (Children)(Remote Hearing: Care and Placement Order) [2020]2, which set out the key factors to take into consideration when deciding whether to hold a remote hearing:

  1. What is the importance and nature of the issue to be determined?
  2. Is there a need for special urgency in the case?
  3. How are the parties represented?
  4. What is the relative ability of the lay witness to engage in the process in a meaningful way?
  5. Will the hearing be conducted on the basis of submissions alone or will there be witness evidence?
  6. What is the source of the evidence to be provided? I.e. is the evidence from an expert familiar with court proceedings or a member of the public?
  7. What is the scope and scale of the hearing to take place?
  8. Is the technology required available to all parties?
  9. Does the court sitting on this matter have the experience and confidence to adjudicate the hearing remotely?
  10. Would there be any safe alternatives which would allow physical attendance at court? I.e. COVID-safe court rooms with limited access to parties.

It was suggested that the allegations of dishonesty could only be dealt with fairly at an in-person hearing where there would be oral evidence and cross-examination, which the presiding Judge, Mr Justice Marcus Smith, agreed would be ‘second-rate’ if conducted remotely. Such a hearing would deviate from the accepted ‘gold-standard’ of in-person oral evidence and analysis as stated in the case of R (Dutta) v General Medical Council [2020]3.

The Determination

In this matter, Justice Smith did not allow the application for postponement to have an in-person hearing and gave a direction for the hearing to proceed on an in-person basis, but with the possibility that witnesses would be permitted to give their evidence virtually. He set out a number of directions as to how the hearing would proceed, which included which Court would be used, how many people could be present at any one time, and instructed that the trial timetable would be far more stringent and detailed than would normally be required so as to ensure compliance with social distancing.

The basis of the decision was that whilst the evidence given would not be the ‘gold standard’ of Dutta, in that the witnesses may be allowed to give their evidence remotely, its impact was compensated for by the lead advocates and the Judge attending the Court in person thus enabling them to decide what weight and inferences to attach to the evidence-based on all of them seeing and hearing the witnesses together, thus negating any differences in this perception which may occur if all parties attended the Court remotely. This arrangement would ensure that there would be a fair process. Furthermore, Justice Smith took note of the fact that the hearing would be a commercial trial involving sophisticated parties which could offer additional support to the witnesses giving evidence, such as delivering materials to enable fewer administrative delays or technical glitches. In summary, Justice Smith did not believe that the preparations for and giving of evidence remotely would be burdensome enough to render the process unfair.

However, Justice Smith did note that he approached the decision in this case on the basis that the hearing would be solely about money, and therefore an adjournment would not have any adverse consequences as it might do in other types of proceedings. Furthermore, he might have taken a different approach had the application related to an adjournment of part of the hearing, in which case he would have been minded to adjourn the entire matter.

The Implications – Regulatory Proceedings

Currently, healthcare regulators are taking varied approaches to the format of hearings. Some are allowing in-person hearings to go ahead in selected cases, with others taking place remotely or in a hybrid fashion, with part of the evidence heard in person and some or all of the parties and tribunal members attending remotely. By contrast, other regulators resist the need for in-person hearings arguing that the entirety of a hearing, including those involving factual disputes and dishonesty, can be held fairly remotely without even the tribunal or advocates needing to attend in person.

It is clear that when considering whether a remote hearing should be held each case should be considered on its individual merits, but the key factor remains the fairness of the hearing should the parties attend remotely and the level of engagement that can be reasonably expected from them. Where the most serious allegations of dishonesty are at play with a registrant’s reputation and professional registration at stake, there is clearly a greater argument to be made that hearings should be held in person or at least that the arrangements as described in Bilta should be put in place. It is clear from case law that there is still scope to argue for an in-person or hybrid hearing based on fairness, particularly as is suggested by Sir Andrew McFarlane in the case of Re P (A Child: Remote Hearing) [2020]4, “establishing that a hearing can be conducted remotely does not in any way mean that the hearing must be conducted in that way.”

References

  1. Bilta (UK) Ltd (In Liquidation) & Others v SVS Securities Plc & Others [2021] EWHC 36 (Ch)
  2. Re A (Children)(Remote Hearing: Care and Placement Order) [2020] EWCA Civ 583
  3. R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin)
  4. Re P (A Child: Remote Hearing) [2020] EWFC

 

About the Authors

Richard Creamer
Partner

Larissa Glass
Solicitor