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Assume hearings are going to be remote, says judge

Freedman: Justice was possible via remote hearing

Parties should assume hearings will be held remotely at the moment and explain why it would not be just to do so if they want one in person, a High Court judge has ruled.

Mr Justice Freedman said the multiple defendants in the case could gather with their lawyers at one location if they wanted.

The judge was unimpressed by the defendants’ counsel in Surrey Heath Borough Council v Robb & Ors [2020] EWHC 1650 (QB) [1] saying that he only asked for an in-person hearing late in the day because the court had not directed that the hearing would be anything other than in court.

“That was to ignore the necessity for the use of remote hearings wherever possible in the current pandemic and the protocol [on remote hearings issued on 26 March],” Freedman J said.

“It also ignored the remote hearings thus far in this case. Against this background, the onus is on a party to draw attention to a requirement to have a hearing in court and to provide reasons why it would not be just for the hearing to take place remotely.”

On 22 June, the judge continued an injunction granted 10 days earlier until a hearing on 1 July. Alan Master, counsel for the defendants, then said he expected the hearing to take place in court so that his clients could give instructions during the course of the hearing.

He also argued that the defendants would not be able to follow the hearing without the guidance of their legal representatives, while they formed three households and in accordance with social distancing would have to be apart if the matter was to be heard remotely.

Further, Mr Master said he wanted to cross-examine one of the claimant’s witnesses, which would be more effective if done in a courtroom, and since the case concerned an injunction affecting the defendants’ ability to reside on their own land, a remote hearing was “undesirable”.

Caroline Bolton, counsel for the claimant, submitted that the usual hearing in the current pandemic was to be remote, while she had been unwell and her medical advice was not to go to court.

Given her involvement in this and a related case, she argued that it would be prejudicial to her client to have to instruct new counsel.

Freedman J noted that the previous hearings in the case had been held remotely and said the 1 July hearing should too.

“If it is necessary for them all to be together, the defendants and the legal team should be able to arrange facilities somewhere whether in chambers or a solicitors’ office or some other office or building arranged for the purpose or elsewhere.

“Whether they do that or not, adjustments can be made to the hearing with breaks so as to facilitate the giving of those instructions.”

“In view of the current pandemic and continuing and significant public health issues, it is inappropriate to order that this matter be heard in a courtroom.”

He noted the claimant’s concern over instructing new counsel, adding: “This is not a case where justice cannot be obtained through a video hearing.”

Freedman J also found no reason to make an order for cross-examination at this stage, saying it would be “unusual” at an interim hearing and “no good reason has been provided” for it.