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Self-isolating litigant in person appears via barrister’s mobile

Rahim: Good decision by the judge

A barrister has spoken of how a self-isolating defendant in a fast-track personal injury claim appeared before the court via WhatsApp video.

Though the defendant (D1) did not give evidence online, there was enough information for the judge, Deputy District Judge MacKenzie in Willesden County Court in north London, to find that her version was untrue.

Dr Mehedi Ibne Rahim, an insurance law specialist practising from Clerksroom, acted for the claimant. The insurer (D2) was separately represented.

When D1, who was representing herself, was unable to attend the full-day trial last Thursday due to the coronavirus, Dr Rahim applied for her to appear via video-link.

The judge agreed, but because it was a last-minute application, the court was not set up for video conferencing, and the barrister instead called the defendant on his mobile via WhatsApp video.

He told Litigation Futures that he and counsel for D2 both moved closer to the bench so that everyone could hear what was being said, with the phone turned towards whomever was speaking. There was nobody in the public gallery.

“It was a good decision by the judge,” said Dr Rahim. “The trial progressed exactly how I would have expected it to had the defendant been present.”

The ease with which a judge can assess the truthfulness of a witness appearing via video link rather than in person is one of the longer-term questions surrounding online justice, but this was not an issue here.

The core issue in the trial was whether it was a case of mistaken identity, as D1 insisted. With the claimant put to proof, D1 did not provide a witness statement and was not cross-examined – although Dr Rahim said that it appeared she effectively gave evidence through the nature of the questions she asked during her own cross-examination and in her closing.

The judge found on the evidence that it was not a case of mistaken identity and thus the defendant had not been truthful in asserting that it was.

With trials by video conferencing set to become the norm during the pandemic, Dr Rahim said the experience gave him confidence that they would not be too different from in-person hearing.

“The reality is that the pandemic is here to last for quite some time and that requires novel approach to be taken. Ensuring that ends of justice are met, in the least amount of public expense, should be at the forefront of mind and that may mean taking innovative approaches as the learned judge clearly did on this occasion.”

Meanwhile, a pupil barrister at the Crown Prosecution Service @Katy_potatie tweeted that in Leeds Crown Court on Friday, a self-isolating barrister appeared from his house by mobile phone Skype held up by opposing counsel, “full robed”.

The judiciary has published guidance on conducting remote hearings in civil cases here [1].