One of the many consequences of the Lockdown is that Virtual or Online Court hearings have become the norm in civil litigation. Recent experience suggests that they can, at their best, work very efficiently but there is no doubt that they will never be an entirely satisfactory replacement for the giving and hearing of oral evidence in person.
One of the greatest challenges of online video conferencing platforms is that they make it difficult to create a sense of empathy. That is hard enough in cases in which large sums of money are at stake but it was sobering to hear the recent reflections of a judge following a hearing at which he had been asked to determine a child custody case. In essence he had to decide whether a baby should remain in foster care and be put up for adoption or returned to its birth mother. The judge commented on how difficult it was to ensure that the birth mother was made to feel that she had been given a fair hearing notwithstanding the fact that she was giving her evidence, sitting alone in her Council flat and having to battle with an intermittent weak broadband signal.
It is easy to understand why the judge was questioning how justice could be achieved in such circumstances but, equally, it is clear that it would not be in the interests of justice to suspend court hearings for months on end.
As it is, we hear reports that the Courts are struggling under the strain of having to list cases online and deal with the administration of justice in a completely new way.
For those of us who give evidence as expert witnesses, we are in the privileged position of simply having to turn up on time and to ensure we have prepared sufficiently to give our evidence. That said, preparation is key and experts now have an opportunity to receive and review trial bundles which would not typically have been provided to them had the hearings not been online. This can be a significant advantage insofar as it allows the expert to get an impression of the issues at stake which are often not made apparent to those acting on a jointly instructed “SJE” basis.
Milsted Langdon’s forensic partner, Roger Isaacs commented “having given evidence online several times over the past few weeks, I have been impressed by how quickly the judiciary, counsel and instructing solicitors have adapted to new ways of working. It clearly presents new challenges for all concerned but it also appears to have resulted in a collaborative approach that is to be welcomed and which one hopes will continue over the months to come. Like the oft-quoted “Blitz Spirit” there is a sense that litigators on all sides are “in it together” and need to cooperate with one another to present evidence fairly notwithstanding the intrinsically adversarial nature of an English trial”