The lessons of virtual and hybrid cases in London’s Commerial Court
Published on: 12/11/2020
On Wednesday 18 March, all hearings in the Commercial Court were proceeding as usual. By Friday 20 March, every single hearing in the list was virtual. What any of the judges would have said in advance was utterly impossible, simply happened.
Since then the Court has seen hundreds of virtual hearings, ranging from short case management conferences, right through to lengthy witness actions with factual and expert witnesses appearing from multiple continents. Since June some hearings have moved back to partly court based structures – “hybrid” hearings, which come in many shapes and forms.
Over that period it is fair to say that there has been a shifting spectrum of views about the merits and demerits of virtual and semi-virtual hearings. At first the consensus was “it is nothing like as good”. But as time has worn on, while that view has remained current in other parts of the civil justice system with the CJC’s June report showing that the broad view is that they were less satisfactory and “compounded pre-existing practical and emotional barriers to effective participation”, the feedback from the Commercial Court’s users has been very positive indeed. The recent User Group meeting saw responses which indicated that clients felt that they had a fair and high quality hearing and also highlighted the advantages for the Court’s national and international client and lawyer base, in terms of reducing the need for travelling to and from court. Similarly in the Business and Property Courts generally, Vos CHC said in a speech to the Chancery Bar Association that the responses of their court users had been overwhelmingly positive.
In the same speech he posed the logical follow-on question: what next? His view is that we will never go back to where we were. And that is probably right. Work has already started on trying to establish the role which virtual and hybrid hearings will play in the future of the Commercial Court, as well as in the other parts of the Business and Property Courts.
But is there a danger of Stockholm Syndrome? What are the parts of real hearings which are irreplaceable, or add value in one way or another?
To answer these questions one needs to review what has been learned about the possibilities and limitations of the technical solutions and how actual cases have developed using them. There remains a debate about whether, as the CJC put it, such hearings are still: “less effective in terms of facilitating participation – a critical component of procedural justice”. There are issues as to how well virtual hearings can be adapted for witness evidence and what challenges they pose for advocates. There is a need to develop a suitable etiquette. Virtual hearings have also raised questions about the role of intangible aspects such as body language and court layout and atmosphere, as well as the impact on wellbeing of exporting the court paradigm into the homes and offices of participants.
These questions and some possible answers will be at the heart of the first part of the Commercial Court’s seminar in partnership with LIDW. It will take place in the afternoon of 7 September 2020 – the
date when LIDW was due to start in the pre-COVID world. The event, part of the Court’s 125th Anniversary celebrations, is called “Year 126 and onwards: planning for the future of London’s Commercial Court” and will comprise three sessions: Virtual and Hybrid Hearings – the Lessons and Legacies of the covid Learning Curve, The Disclosure Pilot – Phase 2 and What Next for Witness Statements?
Commercial Court looks to the future with its first virtual seminar
As part of the Commercial Court’s 125th anniversary celebrations, the court will be presenting its first virtual seminar in collaboration with London International Disputes Week.
The online event – scheduled for Monday 7 September 2020 from 2-5.30pm – is entitled ‘Year 126 and onwards: planning for the future of London’s Commercial Court’.
It will reflect on key issues for the court’s future: the lessons learned from the recent use of remote hearings, and new developments in both the Disclosure Pilot and the approach to witness statements.
The event will be chaired by Lord Justice Flaux, Supervising Lord Justice for the Commercial Court. Each panel will include one of the court’s judges as well as experts from the Bar, solicitors, clients and academia.
The event is supported on the technical front by Opus 2, and registration is now open at: cc125seminar.com
To register a place, visit the event website now.