A virtual success – experiences with online hearings

HGF Law LLP recently represented clients in a patent infringement appeal before the Court of Appeal and a hearing in trade mark infringement proceedings before the High Court and thought it useful to provide some first-hand insight into remote hearings. With excellent support from the Court clerks, the remote hearings worked well, and it will be interesting to see the extent to which courts will continue to allocate hearings to be heard remotely, post-lockdown.

Pre-hearing preparation

• As with a physical hearing you need to ensure that the Court is kept fully up to date and given all essential information. Providing lists of attendees (and emails for the hearing link), along with making sure any requirements like identifying the format (such as pdf) in which documents should be provided in are essential. As everyone gets to grips with the new processes, it is vital to open an early channel of communication with the court clerks.
• With any court hearing or trial there are a number of documents and pleadings to file, and it was important to check how the court would like each to be dealt with;
• Bundles – Although the Court of Appeal has helpfully introduced guidance for providing bundles electronically, it is worthwhile checking with the court what is required in your case. We provided electronic bundles, and the court requested that these be sent as PDFs with an index that is bookmarked with links to take you direct to the individual documents. We were also requested by the judges to provide hard copy bundles. Given that our UK offices are currently closed, we liaised with a third-party print provider to produce hard copies which were couriered direct to the judges.
• Authorities – The Court of Appeal was willing to accept authorities bundles electronically, which were uploaded to a document management system as PDF files. It is always best to check with the clerk that the documents have been received via the management system, just in case there are issues with uploads.
• Skeleton arguments – We sent these in Word format direct to the court clerk, then provided PDF copies of the replacement skeleton arguments (uploading these to the court system)
• It is also important to mention that counsel may be working from home, and judges may not be located within the court, therefore you need to be aware of this additional logistical burden and allow yourself adequate time for organising deliveries of bundles and other documents.
• Communications/IT – You need to ensure your telecommunications software (such as Skype) is working correctly before the hearing. In the Court of Appeal, the clerk organised a trial run, with instructing solicitors and barristers testing out the Skype hearing. Although not necessary, it is certainly advisable for you to have your IT department on standby both for the pre-hearing test and during the hearing to speedily resolve any IT problems that may arise.
• Transcription services – These are still available for online hearings. If you require a transcription of the hearing, you should notify the court that you wish to do so and provide email addresses for the transcription company and to the court so the transcribers can access the remote hearing.

During the hearing – issues to consider

• Channels of Communication – Given that instructing solicitors are not physically sitting behind counsel it is important to establish the direct line of communication with counsel, likewise with your clients.  For example – will instructions and observations be provided via email, WhatsApp or text?
• Access to Documents – Ensure that every participant (including clients) has access to a link to download an electronic copy of the bundle. Having the bundle available electronically to your counsel and clients can reduce the number of hard copies required and ensures the documents can be accessed easily during the hearing.
• Attire – The Court of Appeal requested that all attendees wear business attire. Although the cameras and microphones for the non-speaking parties (everyone apart from the Judges, counsel, experts and witnesses) were switched off, it may nevertheless be a good idea not wear a  ‘lockdown t-shirt’ in the unlikely, but not impossible event you have to appear on camera (counsel informed us that this has actually happened).

Overall

The court clerks were extremely helpful and accommodating, particularly at a time when the number of court staff physically working in the courts is significantly reduced. Given the potential benefits of remote hearings – including reduced time and travel costs, allowing parties to attend from other jurisdictions, reduced cost of producing electronic as opposed to hard copy bundles, there are certainly arguments in favour of holding certain hearings remotely, beyond lock-down. For the present, the civil courts are hearing complex, multi-party trials remotely and our experience of online hearings in the High Court and Court of Appeal have been favourable.

This article was prepared by HGF Partner Marie McMorrow and Senior IP Solicitor Chris Robinson. If you would like further advice on this or any other matter, please contact Marie or Chris. Alternatively, you can contact your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.