Trial by Skype

Most lawyers have, at some stage in their career, reflected on the importance of access to justice. Not until recent days, however, have we had to consider it as an existential matter.

Covid-19 has tried hard to shut down our justice system. Following Hurricane Irma in 2017, it became apparent to me as the beleaguered Attorney General of flattened Anguilla that physical access to courts and tribunals was a rule of law issue which went much wider than the arid writings of Dicey.

In fact, it challenged the whole of our democratic governance and political economy. Technology came to our aid.

Last week, sitting as a judge in the Court of Protection, Mr Justice Mostyn heard a welfare case to determine whether it was in the best interests of an elderly man to continue to receive life-sustaining medical treatment. It is hard to conceive of a more difficult or sensitive case. The hearing was due to take place in the Midlands. The day before the three-day trial began, Mostyn J convened an urgent telephone hearing and determined, with the agreement of all parties, that it should proceed on-line and his preference, from experience, was via Skype for Business.

My instructing solicitor, Matt Nichols at DAC Beachcroft in Bristol, found himself in the driving seat and expertly arranged the virtual hearing. The necessary parties – judge, solicitors, counsel, witnesses of fact and experts – all received email invitations to the hearing. Joining the hearing required us to have downloaded Skype for Business, but we could then enter the hearing as guests rather than having to have a registered account. The applicant’s solicitor at Mills and Reeve arranged for us all to have access to electronic bundles.

The hearing was conducted almost like any other. There was a brief opening and then we heard in turn from the witnesses. Each witness was asked to swear/affirm their evidence. The judge asked for the witness to be ‘spotlighted’ so their screen appeared enlarged on our screens. We could all hear and see the witness respond to the questions.

Each counsel was able to introduce themselves so the witness knew who was asking the questions, albeit the witness could not see counsel. Expert witnesses were dealt with in the same way. We were able to have a video (part of the evidence) played for us. Documents could also be put onto the screen and discussed. Skype permits recording of the hearing and the recorded files were shared with all parties.

Significantly, the media wished to attend. The judge directed that the relevant media organisations be issued with invitations and they were sent the reporting restriction order. They could then follow the hearing and report on it.

Overall, it was a very positive experience and I know solicitors and counsel considered it very satisfactory. The witnesses also managed. But fundamentally, the decision to be faced by the patient himself was determined and made within the relevant time scales by the judge.

There will be questions to resolve. What about parties without representation? Or those who lack access to modern technology? How can effective open access to justice take place virtually? These issues will be worked through in the weeks ahead.

The judiciary has responded with alacrity and determination. The judicial leadership of family and civil justice has embraced the need for virtual technology to ensure justice continues. This is hugely necessary in a democratic society.

While our pioneering Skype trial was successful, others will have technological difficulties. Patience will be required. Much will depend on the judge’s confidence in managing and responding to the technology. Advocates will have to sharpen their advocacy skills: long questions delivered virtually come across worse than in the court room. Solicitors must prepare focused documentation and bundles; witnesses need to be flexible.

Covid-19 is likely irrevocably to transform the face of civil and family justice. The extent of that change is uncertain. But for many solicitors, barristers and the staff who work with us, our livelihoods depend upon us confidently embracing this change.

John McKendrick QC practices out of Outer Temple Chambers in all areas of public and commercial law