Virtual case begins as court rejects trial on papers

Hacon: Fundamentals need to be in place

The High Court yesterday adjourned an upcoming trial, saying that the guidance on the coronavirus pandemic did not allow it to take place on the papers.

But a ‘virtual’ trial of a substantial multi-party Commercial Court litigation worth more than $500m is starting this morning.

According to a Lawtel report of Conversant Wireless Licensing Sarl v Huawei Technologies Co Ltd & Ors, an intellectual property dispute over FRAND licences, the defendants proposed that the trial should be adjourned, but the claimant said the court could deal with the matter largely on the papers.

“In broad terms, the claimant suggested that parties would file evidence in the usual way and would be invited to put written questions to experts pursuant to rule 35.6.

“Full written submissions from the parties, rather than skeleton arguments, would follow. The trial judge would be provided with a reading guide. If the judge had questions, they could be conducted via Skype. Any such hearings should be relatively brief.”

The report said High Honour Judge Hacon in the Chancery Division commended the claimant’s legal team for coming up with ways to deal with the difficulties, and noted evidence that the claimant might suffer significant prejudice if the trial was adjourned.

But there were fundamental feature of the system of justice that had to be upheld, he said, such as open justice and the parties having the opportunity to call their own witnesses and cross-examine the opposing witnesses.

The report said: “Since the start of the health crisis, developments in the courts’ approach had been rapid, but had not included a change in the CPR which allowed the court to conduct a FRAND trial largely on the papers.

“It might be that approved means of conducting such trials continued to develop, and that change might happen rapidly, but at the instant time neither the CPR nor the Lord Chief Justice’s or Chancellor’s guidance permitted a trial such as the instant one to be conducted largely on the papers.”

HHJ Hacon adjourned the trial and gave the parties permission to seek a new trial date on the first available date after 1 October.

Meanwhile, the $500m trial in National Bank of Kazakhstan and another v The Bank of New York Mellon Sa/Nv, London Branch and others began today via Zoom.

City giant Linklaters, which is acting for the first defendant, said it had been due to start on Monday and at a case management hearing last week, Mr Justice Teare rejected one party’s contention that the case should be adjourned; earlier the same day the Lord Chief Justice had issued his guidance that the remote hearings were the default position.

It reported: “Mr Justice Teare ruled that the hearing should proceed if it all practicable and that it would not be right simply to adjourn the trial fixed for next week to some unidentified date in the future.

“He gave short shrift to the argument that there would likely be insurmountable logistical and technical difficulties, in particular with the quality of sound and video connections, and expressed concern that long adjournments would create delays and backlogs in the court system…

“Teare J noted that in the current circumstances the court must adopt an optimistic, rather than pessimistic, attitude. He also reminded the parties that it is the duty of all of the parties to seek to co-operate to ensure that a remote hearing is possible.”

In a briefing note published earlier this week, the firm said the parties agreed to set up a video conference, in which each participant can see and hear each other, as a ‘virtual court room’.

All other parties in attendance – such as clients, solicitors and any non-speaking counsel – are able to stream the video conference via a weblink, but will not be seen or heard by the virtual courtroom.

London firm Stewarts Law is acting for the claimant and said that, as a complex case with overseas witnesses in multiple jurisdictions, pressing ahead with the trial made “clear that the court will contemplate virtual trials in a range of hearings”.

It went on: “The court’s decision does not necessarily rule out adjournments but reflects that the default position is that adjournment should be prevented when possible and that parties should seek compromises in order to proceed with a virtual trial.

“The courts are, in other words, encouraging ‘business as normal’. The decision also underscores the need for parties in complex litigation to have the resources and skills to put forward innovative solutions.”

With open justice in mind, the first day of the trial was available via a screen in the courtroom, while daily transcripts will be posted on the Stewarts Law website.

From Friday, as a result of the Coronavirus Act 2020 coming into force, a publicly accessible livestream over the internet (probably YouTube) is being arranged. (Update – You can now watch it here.)

Elsewhere, Cloisters chambers said in a blog on its website that barristers in the employment team “had been working hard to understand how virtual hearings could work in practice”.

The chambers said it had created a ‘proof of concept’ video of a mock employment tribunal hearing using Microsoft Teams.

“We believe that it demonstrates that virtual hearings are possible even where contentious evidence must be heard and considered by the judge.

“We have sent this “proof of concept” video to senior judiciary within the employment tribunal system and would welcome the opportunity to work collaboratively with the employment Bar and solicitors in order to create a workable protocol for virtual hearings in the future.”

Other lawyers have reported successful online hearings. Ellie Clotworthy, a pupil at London family set Fourteen, tweeted some useful tips from her experience of a hearing via Skype for Business.

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