http://ipkitten.blogspot.com/2020/03/uk-ip-courts-go-virtual-as-covid-19.html
| Merpel attacking her remote working capabilities with the concentration and passion one would expect |
The legal profession is lucky. Our jobs can be performed anywhere. All we need is a laptop and a phone. However, when it comes to litigation we still prefer our analogue world. We like the tactile nature of hard copy paper bundles that we mark-up and flag. We like walking into a courtroom where we can we see the whites of our opponent’s eyes, assess whether the judge is interested or annoyed at a line of argument and observe whether a witness is fidgeting in the box or making nervous glances at the lawyers. But in this new reality, we need to do what is in the best interests of everyone. That may mean that, as far as possible, litigation has to go full virtual. And who better than intellectual property lawyers to embrace and lead the change?
“Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility.
Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.”
Judges have the authority to direct whether, when and how to conduct a hearing, having front and center their duty to uphold the fair administration of justice and maintaining public safety. In Guidelines first published two weeks ago and updated on Friday, judges are encouraged to use video and telephone hearings where possible and appropriate. In making their decision as to whether a hearing is suitable to be held virtually, the judge will consider the nature of the maters at stake in the hearing, issues that may be presented by the technology and issues around public access to or participation in the hearing.
Recognising that the use of virtual courtrooms and hearings will increase in the current climate, HMCTS is rapidly extending their existing technology capability and capacity. In particular, the Guidance states that
- “Teleconferencing We have significantly increased the amount of teleconferences we can run using BTMeetMe. Participants will be sent conference call phone numbers, and no specialist equipment is required other than a phone (and any speakers that you may wish to use).
- Videoconferencing For videoconferencing we have started using Skype for Business on HMCTS and judicial systems. Participants in a hearing do not need Skype for Business to join these videoconferences, however they will need the free Skype meetings app. Each participant will receive instructions and a link to click to join the hearing, as a ‘guest’. Once users click on the link, they should follow the browser’s instructions for installing Skype Meetings App. We recommend doing this as early as possible, to be prepared for your hearing. At the time of the hearing, users go to the Skype Meetings App sign-in page, enter their name, and select ‘Join'”
“Looking ahead, we are expanding the capacity of our fully video hearings solution, which has been used on a small-scale in specified civil, family and tax tribunal hearing types. We want to make sure this bespoke video hearing solution is robust and can handle significant volumes of hearings, as quickly as possible. No bespoke software will be needed to join hearings in a CVP room or for fully video hearings.
These measures are already enabling hearings to go ahead effectively. Examples include a 5-day trial completed over video in the Court of Protection and nearly 500 audio hearings completed.”
A fundamental pillar of the UK’s court system is that justice is done in the open. As the Guidelines and the Protocol state, public access to virtual hearings remains ever important. A range of measures will continue to support the principle of open justice, particularly for the media (see last week’s example where journalists were able to attend criminal cases from home). These measures include:
- With the permission of the judge, a third party may join the hearing remotely
- Transcripts for hearings in those jurisdictions in which we record the hearings. Any party or interested person is able request a transcript. Judges may direct that the transcript be made available at public expense where appropriate
- With the permission of the judge, an audio recording of a hearing can be made available to be listened to in a court building
| Mr Justice Birss is ready for remote hearings, just excuse his new usher |
Mr Justice Birss presided over three hearings two weeks ago and several more this past week, including a Case Management Conference in the IPEC in the retrial for Martin v Kogan (the Florence Foster Jenkins screenplay case – here). He told Merpel that:
“In response to the current pandemic the Patents Court, as part of an initiative across the Business and Property Courts, has started carrying out hearings remotely. Two weeks ago, a hearing took place in open court using Skype for Business which was able to accommodate counsel who was self isolating at home, two other counsel, several solicitors and one of the individual parties, all of whom attended using that video conference system. Further similar remote hearings took place that week and have continued throughout this past week. Remote hearings take a little getting used to, but it really does work quite effectively.”
If the IP community in London bands together to share their best practice and guidance, we can ensure that the court system remains operational and as user-friendly as possible. We can also share our learnings with lawyers and judges in other jurisdictions. As lawyers it is our responsibility to ensure that during times of turmoil access to and the administration of justice is maintained and that those who serve our public institutions are kept safe and kept employed.
It is also our responsibility to ensure that those who are most vulnerable (and even more so now) continue to have access to representation in the Court. Merpel suggests donating (at a minimum) what would have been your over-ordered Pret lunch (that you would have mindlessly devoured in a court consultation room) to Support Through Court – here.
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Remote Hearing Tips
| Bubbles did not follow Rule 2 of good videocon hygiene |
1. Dial-in 15 minutes before to make sure everyone is connected, audio is optimised and feedback/echo issues are identified and curtailed. Make sure you are in a quiet space where you will not be disturbed. This is basic conference call hygiene.
2. Dress for the camera. For counsel appearing on video, remember to wear solid suits/ties/shirts – patterns (particularly stripes) disrupt, distort and can delay images.
3. All participants, save those who are speaking must be on mute.
4. Establish your own separate secure instruction channels to ensure efficient and quick communication between solicitors, barristers and clients via chat platforms and/or a separate dial-in for your legal team should barristers need to seek instructions. The court provides a private consultation facility, but as the court recognises:
“Legally privileged conversations with clients are fundamental to representative justice, and are a necessary part of our justice system. Our bespoke product for fully video hearings, which is subject to testing at the moment, provides for this in the form of private consultations. We are working to scale up this solution, as we are doing with our other capabilities, as soon as possible.”
5. Prepare remote e-bundles as far as in advance as possible. A core updated bundle can be uploaded to a secure shared cloud-based drive that can then be added to centrally to facilitate quick updates. Once the judge has the first e-Bundle pdf, keep a separate document of all the updates made to the bundle in a separate Word document so that the judge and his/her clerk can keep track of any new documents that may have been added to the e-bundle.
6. Provide access to skeletons to third parties in advance where possible to enable third parties to follow along during the hearing and transcripts and approved judgments afterwards (particularly where judgments are given ex tempore and are not recorded in the transcript).
7. If third parties wish to attend, help facilitate access and flag up confidentiality concerns with how those can be managed (including dialing off a call and then being contacted to rejoin).
8. Be tolerant and patient. Things take awhile to bed down and change always takes some getting used to.
Resources:
Guidance – HMCTS telephone and video hearings during coronavirus outbreak
Protocol Regarding Remote Hearings (20 March 2020)
Practice Direction 51Y (116th Update to the Civil Procedure Rules)
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