Dial in for Justice- hearings by phone

I fear I broke a number of rules about what not to wear at court recently when I was involved in my first teleconference hearing at the Court of Session. Thankfully phoning in from the comfort of my own home meant that my lack of formality was unnoticed.

The opposed motion hearing, which took place in line with the recent guidance from the Court of Session, proceeded smoothly. It wasn’t just a short hearing on an urgent application, as most had been to that point, but a contested hearing about financial orders, with hundreds of pages of documents from each side and lengthy submissions.

In advance, we had all been given a specific time and code to phone by the clerk. Counsel and solicitors all phoned in separately 5 minutes before the Judge was due to join. We each confirmed our names to the clerk. It was then a case of waiting for the Judge to join.

Upon joining, the Judge explained that she had read the written submissions and outlined how she wished the hearing to proceed. Clear directions about when she was expecting to hear from respective Counsel meant that there was no talking over one another. The Judge listened to the submissions, made her determination, and the interlocutor (written order) followed immediately by email.

It strikes me that this might be our “new normal” for case management hearings and opposed motions for some time and so I have reflected on what worked well. Here are my top tips:

  • Be prepared: as an opposed motion, there were many productions to work through and important submissions to be made by both parties. Before the hearing, Counsel prepared detailed written submissions (which both parties exchanged in advance) and we prepared a indexed e-bundle of productions as per previous guidance for the Inner House. Whilst this involved a greater amount of work than would have been standard for a hearing in person, it restricted the length of teleconference hearing. The Judge specifically thanked Counsel for having focused the dispute through their written submissions.

  • Silence in Court: I wouldn’t normally actively take part in a Court of Session hearing, so as soon as I had confirmed my name I pressed the ‘mute’ button on my phone. This meant that there could be no inadvertent noise from my cats.

    There is something very different about listening to a phone call rather than sitting in court: I suspect that if clients were to join teleconference hearings there may be a greater temptation on their part to participate (when they ought not to, and when they wouldn’t have dreamt of in open court). It may be sensible to reinforce with your client what to expect, respective roles and pressing mute.

  •  Comms with Counsel: as an instructing solicitor, there is a need to pass information to Counsel on their feet during a hearing. This is obviously impossible over the phone – there is no option to pull on their gown. For this remote hearing, Counsel and I had arranged to pass any relevant information between one another via text to avoid disrupting the hearing (which also covered the possibility of confirming any urgent instructions from the client, who was also on standby by text).

In this case having the hearing by telephone worked well and I’m not sure that having it by video conference would have added anything. In England and Wales, their default is video conferencing, rather than telephone hearings.  Many words have already been written about how hearings should take place and there are ongoing discussions about the potential access to justice issues, and whether parties should have a choice of how their hearing is conducted. Those discussions are going to intensify as we continue the work of re-starting the court business that’s been lying dormant for the last seven weeks. It may be some time before I am back to suit and tie.