Remote advocacy in Cayman Islands hearings

While rights of general admission are only granted to persons resident in the Cayman Islands, as a senior, experienced and highly specialised practising member of the Chancery Bar of England & Wales, I can appear as counsel in any hearing in the Courts of Cayman, if granted limited admission on a case specific basis, i.e. as and when required, because I can add value in a complex international trust dispute.

In order to be admitted, I would need to be instructed by a local attorney who would provide a supporting affidavit about why my services are required in the case that is before the Cayman Islands Court, i.e. because of my specialist knowledge and expertise. 

Where the hearing takes place remotely, I can appear as an advocate working from 1 Essex Court, or at a solicitors’ office in London.

I am investigating whether the same rule applies to international trust litigation hearings in the courts of: Australia; Bahamas; Bermuda; BVI; Dubai; Jersey; Gibraltar; Guernsey; Isle of Man; New Zealand; Singapore; and South Africa.

As an SCMA accredited mediation advocate, I can represent a party in a virtual mediation in any of these jurisdictions, and again would only act, if instructed by a local attorney.

If you are a trust practitioner in any of these jurisdictions and would like to contact me to enquire about how we can work together in an international trust/breach of fiduciary duty case, please send an introductory email to carl@ihtbar.com.

Contentious Trusts Handbook, 1st Ed, Published

I am delighted to announce the publication of my seventh book, the ‘Contentious Trusts Handbook’, 1st edition, published by the Law Society.

The details of the book are set out below, along with the Foreword, which was written by Toby Graham of Farrer & Co in London.

My article ‘Judicial-ENE and the New Normal’ (see the Abstract at the foot of this post) has also been accepted for publication by Trusts & Trustees in the forthcoming Issue 9. Trusts & Trustees (Oxford University Press) is a rigorous peer-reviewed journal, which is sold and distributed worldwide.

Book details:

ISBN-13:978-1-78446-12446-124-9.

400 pages (including 20 precedents on disc).

Ordering Links:

Law Society Bookshop: https://bookshop.lawsociety.org.uk/p/contentious-trusts-ha-1st-edition-paperback-cd/

Wildy & Sons Ltd: https://www.wildy.com/isbn/9781784461249/contentious-trusts-handbook-law-society-publishing

Price: £100.

For more information about the book please visit: https://newsite.carlislam.co.uk/contentious-trusts

I would like to thank the following individuals for their contributions:

• Toby Graham, Head of Farrer & Co’s contentious trusts and estates group, who wrote the Foreword (see below). https://www.farrer.co.uk/people/toby-graham/;

• Pandora Mather-Lees, who is a distinguished Art Historian and contributed a practice note about duties of trustees in relation to art and cultural heritage assets: https://www.artonsuperyachts.com/;

• Hector Robinson QC, who is a partner in the international offshore law firm Mourant, and is Head of the Cayman Islands Practice Group for International Trust and Private Client Litigation, who contributed a practice note about trust litigation in the Cayman Islands. https://www.mourant.com/profile/view/3559/Hector-Robinson%20QC; and

• Anthony Trace QC, 4 Pump Court, Temple, England, who won ‘Mediator of the Year’ in the Innovation & Excellence Awards 2019, who contributed a practice note about mediation in trust and estate disputes.https://anthonytraceqc.com/

Foreword 

Sir John Baker explains that the publication in 1837 of “A Practical Treatise on the Law of Trusts” authored by Thomas Lewin signified a shift away from perceiving trusts as principally an adjunct of conveyancing of land towards an institution in their own right. Trusteeship shifted from being a relatively passive office ancillary to landed settlements towards a more general and demanding role. Trusts ceased to be the exclusive preserve of the aristocracy also becoming a vehicle for the wealth of Victorian England’s middle classes. The book is now known as Lewin on Trusts. It continues to dominate the English texts.   

Similar observations might be made of the Contentious Trusts Handbook commissioned by the Law Society and written by Carl Islam (who like Thomas Lewin is a leading barrister practicing in the field). This is because its publication reflects the unfortunate fact that the risk of trustees becoming involved in court proceedings appears to be on the increase. Such proceedings are increasingly hostile and hard fought. This handbook provides the busy practitioner with a practical overview of themes that are commonly encountered.  It will guide them through every stage of proceedings, from pre-action protocols through discovery to settlement and trial. It contains a detailed discussion of mediation and arbitration and it is accompanied by a set of useful precedents and contributions from an art expert (Pandora Mather-Lees), an expert in trust litigation in the Cayman Islands (Hector Robinson QC) and a mediator (Anthony Trace QC).

The handbook will enable practitioners to anticipate and head off problems, thus hopefully reducing the risk of litigation, as well as providing guidance if and when proceedings are necessary. As with its non contentious cousin, authored by Gill Steel, Mr Islam’s handbook will become a well established staple on our bookshelves. The author and the publishers are to be congratulated.  

Toby Graham

Partner and Head of the Contentious Trusts and Estates Group at Farrer & Co LLP

Co-editor of Trust & Trustees (Oxford University Press)

11 Januaury 2020

‘Judicial-ENE and the ‘New Normal’

  • The new normal.
  • Rationale.
  • Benefits.
  • Claims involving minors and unborn beneficiaries.
  • Powers of the court.
  • Procedure.
  • Conduct and ethics.
  • Costs.
  • FDR.
  • Conclusion.

[Abstract: The author’s premise is that JENE is the new normal. He discusses: the rationale; jurisdiction and powers of the court to order JENE; its benefits; and the procedure. He concludes that, except where a claim involves the interests of minors and unborn beneficiaries, use of this case-management tool is likely to become increasingly routine at the first case-management conference where for example, one party has proposed JENE, and another has refused consent because he prefers mediation. Whereas mediation requires consent, JENE does not, and the court has the power at the first CMC to order a stay during which the parties must:

(i)        take stock; and

(ii)       each carry out a reality-check,

before substantial costs are incurred in preparing for trial. Therefore, in an appropriate case, where a binary outcome on liability can open the door to settlement in relation to quantum, relief, and costs, JENE should be considered].

Advocacy at remote hearings

·       Virtual Hearing Protocol

·       Platforms

·       Logistics

·       Advocacy

·       Bundles

·       Annex 3 of Practice Direction 32

Virtual hearing protocol

The Civil Justice in England and Wales Protocol Regarding Remote Hearings, 26 March 2020[1], states;

‘1.      The current pandemic necessitates the use of remote hearings wherever possible. This Protocol applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts. It should be applied flexibly.

2.      … Whilst most court buildings currently remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19.

3.      The method by which all hearings, including remote hearings, are conducted is always a matter for the judge(s), operating in accordance with applicable law, Rules and Practice Directions.

Nothing in this Protocol derogates from the judge’s duty to determine all issues that arise in the case judicially and in accordance with normal principles. Hearings conducted in accordance with this Protocol should, however, be treated for all other purposes as a hearing in accordance with the CPR.

13.    Available methods for remote hearings include (non-exhaustively) BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. But any communication method available to the participants can be considered if appropriate.

14.    Before ordering a hearing by court video link, the judge must check with the listing office that suitable facilities are available.

16.    Judges, clerks, and/or officials will, in each case, wherever possible, propose to the parties one of three solutions:-

(i)      a stated appropriate remote communication method (BT conference call, Skype for Business, court video link, BT MeetMe, Zoom, ordinary telephone call or another method) for the hearing;

(ii)      that the case will proceed in court with appropriate precautions to prevent the transmission of Covid 19: or

(iii)     that the case will need to be adjourned, because a remote hearing is not possible and the length of the hearing combined with a number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with the hearing in court at the current time.

17.    If the parties disagree with the court’s proposal, they may make submissions in writing by email or CE file (if available), copied to the other parties, as to what other proposal would be more appropriate. On receipt of submissions from all parties, the judge(s) will make a binding determination as to the way in which the hearing will take place, and give all of the necessary directions.

18.    It will also be open to the court to fix a short remote case management conference in advance of the fixed hearing to allow for directions to be made in relation to the conduct of the hearing, the technology to be used, and/or any other relevant matters.

19.    The fact that a hearing is to be a remote hearing and, where possible, the technological method to be employed, will normally be shown in the cause list.

20.    The clerk or court official, and the parties, will all need to log in or call in to the dedicated facility in good time for the stated start time of the remote hearing. In a Skype, Zoom or BT call, the judge(s) will then be invited in by the clerk or court official.

21.    The hearing will be recorded by the judge’s clerk, a court official or by the judge, if technically possible, unless a recording has been dispensed with under CPR Part 39.9(i). The parties and their legal representatives are not permitted to record the hearing. With the court’s permission, arrangements can be made with privately paid for transcribers.

23.    The clerk, court official or the judge(s) must complete the order that is made at the end of the remote hearing. The wording of the order should be discussed and agreed with the parties.

24.    The parties should, if necessary, prepare an electronic bundle of documents and an electronic bundle of authorities for each remote hearing. Each electronic bundle should be indexed and paginated and should be provided to the judge’s clerk, court official or to the judge (if no official is available), and to all other representatives and parties well in advance of the hearing.

25.    Electronic bundle should contain only documents and authorities that are essential to the remote hearing. Large electronic files can be slow to transmit and unwieldy to use.

26.    Electronic bundles can be prepared in .PDF or another format. They must be filed on the CE- file (if available) or sent to the court by link to an online data room (preferred) or email.’   

‘HMCTS telephone and video hearings during coronavirus outbreak’[2] (18 March 2020, updated 30 June 2020) further states,

·        ‘For video conferencing we have started using Skype for Business on HMCTS and judicial systems. If you have a video hearing coming up, and you want to join using your computer, you will need to download Skype meetings app for your web browser. If you’re joining using your mobile, you’ll need to download the Skype for Business app in your mobile application store. You will receive instructions and a link to click to join the hearing, as a ‘guest’. When you click on the link, you 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, you must go to the Skype Meetings App sign-in page, enter their name, and select “Join”.

·        We have increased capacity, undertaken testing, and are now introducing our ‘cloud video platform’ (CVP) for hearings. CVP uses Kinly video conferencing software. These videoconferencing rooms can be accessed through any laptop or video device. We can also use bridging links to communicate with fixed endpoints that use the Justice Video Service, in courts, prisons and police stations.

·        Please note, HMCTS does not currently support the use of other video conferencing applications and therefore Skype and CVP should be used.

·        Looking ahead, we are expanding the capacity of our video hearings service, which has been tested on a small-scale in specified civil, family and tax tribunal hearing types. Further testing is underway in tax and property tribunals to ensure this bespoke video hearing service is robust and can handle significant volumes of hearings, as quickly as possible. No bespoke software is needed to use the video hearings service, or join hearings in a CVP room.’

Guidance about participation in a remote hearing is set out in ‘How to join telephone and video hearings during coronavirus (COVID-19) outbreak.[3]

Platforms

The COMBAR Guidance Note on Remote hearings 12 May 2020: https://www.combar.com/wp-content/uploads/2020/06/COMBAR-Guidance-Note-on-Remote-Hearings-2nd-edition-23-June-2020-002.pdf, states:

‘19.   A number of alternative video conferencing platforms are available, but only if the Court is prepared to approve their use in advance. These include (in no particular order) Zoom, BlueJeans, Lifesize, GoToMeeting, WebEx, Starleaf and others. Details of the technical requirements for these products can be found as follows: 13 a) Zoom: https://zoom.us; 14 b) BlueJeans: https://www.bluejeans.com; c) Lifesize: https://www.lifesize.com; d) GoToMeeting: https://www.gotomeeting.com/en-gb; e) WebEx: https://www.webex.com/video-conferencing; f) Starleaf: https://www.starleaf.com. 

20.    In each case, where it is proposed to use video conferencing technology it is necessary to ensure that the video conferencing platform can be operated by every participant in the trial.  

21.    As a result, confirmation should be sought from the Court about its ability to use the particular platform. Those enquiries should extend to an enquiry as to whether the Court will need to be provided with additional hardware (e.g. a standalone laptop). Enquiries of this kind should be directed to the clerk to the Judge who will hear the case. Similar confirmation should be sought of every other participant in the hearing. If and to the extent that there are any issues with any participant’s operation of the platform, these should be identified at the PTR. 

22.    Effective operation of any video conferencing platform will depend upon the users’ internet bandwidths (both their upload and download speeds). The required bandwidth for videoconferencing varies from platform to platform and may also vary depending upon the number of concurrent users of the platform. The speed of any individual’s broadband connection (i.e. the bandwidth available to that user) will depend on factors including the time of day and the number of people in the relevant household using the internet at the same time.’

 Logistics

The generic logistical issues to address, are highlighted in the COMBAR Guidance Note on Remote hearings 12 May 2020: https://www.combar.com/wp-content/uploads/2020/06/COMBAR-Guidance-Note-on-Remote-Hearings-2nd-edition-23-June-2020-002.pdf (from which the following recommendations have been extrapolated):

•        The parties will need to test the functioning of any applicable video conferencing platform on their computer set-up in good time ahead of the hearing and it will generally be sensible to undertake a ‘dummy run’ of the relevant platform with instructing solicitors 48 hours prior to the hearing to ensure that the relevant technological requirements for the hearing can be met.

•        In addition, a dummy run should be arranged with the clerk to the Judge hearing the case.

•        It will be useful to liaise with the clerk to the Judge ahead of the hearing as to whether the Judge would specifically prefer hard or electronic copies (or both).

•        The success of a remote hearing is heavily dependent upon the relative ease with which the participants can refer to documents at the hearing.

•        Electronic bundles will therefore be the norm.

•        However, it would be sensible also for the Judge and counsel to have available to them hard copy bundles of the pleadings, and in addition the core bundle should normally be produced in hard copy for the Judge and counsel.

•        Any hard copy bundles must be identically paginated to any electronic copies of the same bundles.

•        The parties should liaise with the Judge’s clerk in good time before the hearing regarding the delivery of any hard copy bundles.

•        Experience to date suggests that skeleton arguments have taken on increased importance in remote hearings. That being so, it may be appropriate in some cases to depart from the typical page limits that apply under the [applicable] Court Guide and/or to ensure that the written submissions are provided earlier than the dates prescribed in that Guide.

•        It has been observed that “remote hearings remain court hearings and the solemnity of the occasion should be observed as closely as it is in a courtroom. Within this context, and insofar as is possible, the decorum of a court hearing should be maintained commensurate with the gravity and seriousness of the issues being decided in a formal legal arena. Steps should be taken to avoid matters that detract from the ordinary gravitas of a court hearing”.

•        In keeping with these requirements, advocates should dress as if they were attending Court, should ensure (to the extent possible) that the background visible on screen is appropriate for a Court hearing and should ensure that they are not interrupted or distracted during the course of the hearing. The use of in-ear headphones is permitted and encouraged if they assist with audibility.

•        Useful guidance on advocacy at remote hearings (and as to common technological mistakes) has been published by the Inns of Court College of Advocacy, https://www.icca.ac.uk/wp-content/uploads/2020/04/Principles-for-Remote-Advocacy-1.pdf.

•        Technical issues may arise in remote hearings. To the extent possible, steps should be taken ahead of the hearing to agree how notification is to be provided of the occurrence of a technical issue. For example, it may be agreed that the participants and the Court will be alerted to the problem by telephone, text or email.

•        Judges and other participants have observed that using technology to conduct hearings is unusually tiring. In addition, participant may have caring or other responsibilities that may create difficulty in attending during normal court hours. Careful thought should, therefore, be given to the appropriate timing and length of each hearing day and to the breaks that are required throughout the day. It will normally be sensible to take a short break mid-morning and mid-afternoon – and it will be necessary to do this where stenographers and/or interpreters are involved.

•        Counsel will need to be able to maintain a separate line of communication with other members of the counsel team and their instructing solicitors. The manner in which this is done is not a matter of concern for the Court, but care will need to be taken to ensure that the method of communication does not interfere with the hearing (for example, through noisy notifications) and that the communications are kept confidential.

•        Counsel should also ensure that their separate line of communication does not result in “unauthorised transmission of an image of, or sound made by, another person while the other person is viewing or listening to a broadcast” of a remote hearing, contrary to Section 85B of the Courts Act 2003 (as amended by the Coronavirus Act 2020).

•        Moreover, the normal etiquette of a Court hearing must be observed. You, your solicitors or your clients may not be able to control whether or not their behaviour is visible or audible – but, in any event, the fact that a hearing is taking place remotely is not an excuse for behaving differently than you would were you in Court. Please remember that the advocate can be seen at all times (even when he or she is not making submissions).

Advocacy

Help the judge to navigate his way around the contents of the electronic bundle.

When presenting your submissions, your Skeleton Argument is your map:

‘Don’t read from it.

But do quote from it.

Begin your argument by capturing the bull’s-eye point in a neat opening sentence.

Then identify what you say are the facts, pointing out where you have mentioned them in your Skeleton Argument.

Now develop where you say there is an argument with your opponent on the facts, and why you should win it.

Explain how you suggest the law fits the facts as you suggest they are. Identify where the arguments lie, and explain why your argument beats the other side, reminding the judge of what is in the skeleton.

Take your time.’ (‘The Devil’s Advocate, by Iain Morley QC (2009), Sweet & Maxwell, p.106).

In a virtual hearing, facial expressions and gestures are even more apparent to the judge than they are in the court-room. Advocates should therefore remember at all times, that ‘Human beings are far more video than audio. The way we collect most of our information is through our eyesight … Intent listening is something we do with surprisingly rarity … What most lawyers ask the [Judge] to do in court is to use [his] second best device for gathering understanding. And [Judges] do it: on the whole they do it well. But since we don’t tie blindfolds on them, they don’t switch off their best information gathering device… People who have studied the psychology of communications have some terrifying statistics for us lawyers. Examples:

•        60% of a message is conveyed by body language and visual appearance generally.

•        30% of the message is conveyed by tone of voice.

•        Only 10% of a message comes through the words used.

•        Only 10% of what people hear gets remembered. If, on the other hand they see something connected with what they are hearing, as they are hearing it, they remember 50%.

Lawyers tend not to know these statistics, just as they don’t seem to realise that they are operating all the time in the Video dimension.’ (Common Sense Rules of Advocacy for Lawyers (2004), by Keith Evans. The Capitol.net, p.8).

The following general guidance is set out in ‘Principles for remote advocacy’, published by the Inns of Court College of advocacy 2020:

•        Judges and advocates who already have experience with this practice consistently remark that effective remote advocacy depends not on new skills. It rewards the bedrock skills: a clearly articulated and logical case, supported by selective use of authority and documents, and focused examination of witnesses. With careful preparation and attention to those core skills, it is possible to make remote hearings, in appropriate cases, highly effective.

•        As far as possible the online hearing should emulate a traditional hearing. This advice applies to advocates and witnesses alike.

•        Establish a speaking protocol at the outset. This may involve participants, when introduced, acknowledging the introduction by raising their hand rather than speaking. This is preferable to a brief nod which may be imperceptible on small thumbnail videos.

•        You must not record a hearing but be prepared to remind the judge to record the hearing.

•        When not speaking, press mute. All participants should do this when not speaking.

•        When it is your turn to speak, remember to unmute your microphone. Speak directly into the microphone.

•        Where multiple devices are in use, all should be muted and only one un-muted when required.

•        Advocates should avoid using headsets (combined over ear headphones and microphone), since online hearings should emulate in-person hearings as closely as possible. However, the use of discrete in-ear headphones is usually permissible and can assist with preserving the confidentiality of proceedings. When in doubt seek the guidance of the court or tribunal in advance.

•        Avoid setting your device to the highest volume, since this is likely to cause feedback when you are speaking.

•        Encourage participants to raise their hand when wishing to interrupt a speaker, or otherwise use the facility to do this on the software provided.

•        Maintain eye contact with the camera. This will ensure you appear to be looking at your audience. The thumbnail image of the person you are speaking to may be at the bottom of the screen, when the camera in your device is above the screen. If so, this will give the appearance that you are looking down or away from your audience.

•        Ensure that you are clearly visible by maintaining a reasonable distance from the camera, to show your head and upper body. Too close in your image may blur and fill the screen, too far and you will appear distant and detached from the hearing. Some cameras zoom in and out depending on the movement of the subject. This should be avoided.

•        Advise everyone to be mindful, if using Skype for Business that the camera records a wider area than one sees on one’s own screen.

•        If you are using the camera on your laptop, typing when you are visible is liable to cause the camera (in your image) to shake. Try to use a separate keyboard or a separate camera mounted away from the laptop.

•        Remember that others are watching even if you cannot see them. In cases involving multiple participants, thumbnail video images may appear on screen, but these thumbnails often move off screen to allow participants to see the face of the person talking, or the document being shared. Observers may also be present. As such, often there are people present at the hearing who are not visible.

•        Ensure that you are well lit by natural or artificial light. Avoid sitting with your back to a window or other light source. This can result in only your silhouette appearing on the screen.

•        Dress professionally, but not in robes unless specifically asked to do so, and appear as if attending the court or tribunal in person.

•        Most hearings take place with parties seated. If in doubt, check with the court. If you prefer to stand, adjust your camera accordingly.

•        Download an app to enable you to mark up the bundle such as Acrobat DC or PDF Expert.

•        Save and keep all your work (including prep and bundles) in a GDPR-compliant cloud not on your device. Whichever cloud you use, it is important to store documents systematically so you can find them easily. Keep a clean duplicate of your bundle, so that you have one clean bundle and one that is marked up. This way, if the judge asks for a document to be handed up, you have a clean copy.

•        The numbers on the pagination can be quite small. Before a hearing, it helps to expand them (and change them to a bright colour) so that you can see them more clearly and move around the bundle more quickly.

•        Use an agreed indexed electronic bundle of documents which can be referred to between relevant parties by section, page and paragraph number without the need to share the document on the screen or to hold up physical documents.

•        Minimise the size of the hearing bundle. It is tempting, since the bundle is electronic, to include anything at all that might conceivably be relevant. Resist that temptation. Big files are harder to handle and cause all sorts of other problems (e.g. rejection by email filters). That goes for authorities, too, of course.

•        Make sure you can find documents you need at speed. Advocates are advised to have a list of key documents, or a hyperlinked index. Bookmark critical documents. Make sure all references in your notes are absolutely accurate and precise and that references in the skeleton argument are to the pages in the electronic bundle, not some historic paper version.

•        You must be able to provide, without delay, the reference to the documents to which you want to refer. Always give the reference, not just a description, and give people time to find the document.

•        Make sure you can access two documents simultaneously (e.g. on different devices or windows). You often need both to follow a document that someone else is referring to and find another document for your own purposes.

•        Do not let the difficulty in handling documents deflect you from using documents effectively. In civil cases, documents are often very important. If you have a point to make about the document you nearly always need to make sure that you, the witness, and the judge all have that document in front of them. Summaries are never effective.

•        If you unexpectedly need to share a document with the court or tribunal which is not in the electronic bundle, but which cannot be made visible to all observers by sharing on screen, agreement must be reached as to the appropriate channel of communication to be used, e.g. sending the document to the court or tribunal by email.

•        Beware that it is likely that rather more weight will fall on the written argument than it does in typical hearings.

•        Use the written argument to provide a clear roadmap of the key issues and how you expect to approach them.

•        Use the written argument to provide a way of finding any key document, especially if you are dealing with a complex body of evidence. Recognise that it is harder to follow a remote presentation, and that the judge may well need an aide memoire that can be consulted before and after the hearing.

•        Do not, however, be tempted to shoehorn a mass of material of secondary importance into the written argument. If anything, this is even worse when the oral hearing is compressed, because it is likely to leave your written argument disconnected from your oral presentation.

•        Give careful thought to which parts of the argument will require oral presentation expansion, and how you are going to do that.

•        Mark documents in arguments for ease by agreeing a key with the other side e.g. [1/1/1] = bundle 1, tab 1, page 1.

•        Your preparation needs to be more meticulous than it would be for a normal hearing. In remote hearing, time is at a premium. Remote communication has less impact and less subtlety than face-to-face communication.

•        Write a more detailed script for submissions and cross-examination questions than you usually would.

•        Anticipate questions that the judge is likely to raise, or points that your opponent may develop orally, and discuss them with your team in advance.

•        Simplify your arguments as much as you possibly can, remembering that if you “lose the judge” you are less likely to notice that you have done so than you are in court.

•        A loss of non-verbal communication (and aspects of ”style”) are lost when working remotely. Concentrate on the substance.

•        Brevity and precision are key. In the event that either sound or video quality is interrupted during a question or submission, repetition may be required, a process far easier to complete with succinct questions or submissions.

•        Aim to present your case in a low-key courteous and measured way. Be careful not to have too much mental overload during a hearing.

•        Be prepared for the fact that remotely conducted hearings are more taxing than a conventional hearing. Do not be shy of asking for breaks.

•        In a remote hearing, a brief delay typically occurs between the video image of the person speaking and their voice being heard by the court/tribunal and witness. This connection delay may lead participants to believe a person has finished speaking before they have, in fact, done so and is liable to result in participants inadvertently speaking over one another.

•        Do not interrupt. Let a speaker finish before speaking. Be especially careful not to interrupt a witness’s answer or a judge’s question.

•        When you are speaking, allow pauses for judicial questions. You may even want to invite them.

•        If you are speaking and become aware that someone else is trying to speak, pause to allow them to do so.

•        Do not fill pauses. Gaps between speakers (e.g. while waiting for a witness to answer) are more common with remote communication than when you are together in court.

•        If you feel compelled to interrupt and “get to your feet”, you may want to raise your hand to the tribunal as an indication of wanting to do so.

•        If you share your screen, be careful. When you share your screen, everything is visible online, including pop-up notifications, screensaver photographs etc. For safety’s sake, ensure your screen is clear and that notifications are disabled. Documents can be shared without sharing your screen or (best) referred to in an agreed bundle.

•        You will probably want to communicate with your own team but consider how this is best done. Receiving a steady stream of emails and WhatsApp messages from many different people is not helpful. Agree how your team will communicate but ask for communications to be limited to what is really necessary and consider channelling all communications through a single team member who can act as a filter.

•        When leaving a hearing, even if going to another room, ensure that the microphone is muted, and the video disabled until you return. Alternatively, you should sign out of the meeting and sign in again upon returning.

Bundles

The COMBAR Guidance Note also states:

‘If the bundles are to be produced electronically, it is essential that appropriate thought is given to the use of those bundles at the hearing. In particular (taking account of guidance issued by the Supreme Court), the following approach is recommended in all cases in which .pdf bundles are proposed:

a)      only essential documents should be included in the electronic bundles;

b)      the electronic bundle should (unless unusually voluminous) be a single .pdf file which is capable of being word-searched;

c)      the .pdf file should be prefaced to by an index which contains hyperlinks to the relevant documents and, where appropriate, relevant parts of documents;

d)      the electronic bundle should be paginated from first to last page, regardless of whether multiple documents have been combined together (and inclusive of any indices);

e)      the default display size of all pages must always be 100%;

f)       wherever possible, text on all pages of the .pdf must be capable of being selected and highlighted. Pages of text should not be formatted as images

[which may require scanned documents and images within a PDF to be processed
using appropriate Optical Character Recognition (OCR) software before the final
version of the PDF bundle is saved. Some PDF management software solutions
come with OCR capabilities inbuilt]

;

g)      the “bookmarks” function must be used to delineate the location of different documents within the .pdf file. The bookmarks should be labelled both to identify the relevant document and to show the page number. Bookmark labels should be neutral and descriptive only;

h)      the resolution on the bundle should be reduced to about 200 to 300 dpi to prevent delays whilst scrolling from one page to another;

i)       to the extent possible, hyperlinks should be used within the electronic bundle and between skeleton arguments and the bundle;

j)       where both hard copy and electronic bundles are produced, identical pagination should be used in both bundles. This may mean in the hard copy bundles, paginating indices etc. that appear at the beginning of the bundle.

Where a .pdf bundle will be used in a hearing, advocates should consider obtaining and using .pdf management software enabling search and personalized highlighting, annotation, bookmarking and indexing of the .pdf bundle. Pdf management software solutions, with features relevant to the creation of .pdf bundles including pagination and bookmarking, are available for purchase: Examples include Adobe Acrobat Pro DC (for MacBook’s and Windows machines) and PDF Expert version 7 (for MacBook’s and iPads). Please note that all Judges of the Commercial Court have the basic version of Adobe Acrobat which allows for searching, selecting, and highlighting text. They do not have Adobe Acrobat Pro.’

Annex 3 of Practice Direction 32

The taking of evidence from witnesses by video link is addressed by the Practice Direction to CPR Part 32.

Annex 3 of the PD states:

VIDEO CONFERENCING GUIDANCE 

This guidance is for the use of video conferencing (VCF) in civil proceedings. It is in part based, with permission, upon the protocol of the Federal Court of Australia. It is intended to provide a guide to all persons involved in the use of VCF, although it does not attempt to cover all the practical questions which might arise. 

Video conferencing generally 

1.      The guidance covers the use of VCF equipment both (a) in a courtroom, whether via equipment which is permanently placed there or via a mobile unit, and (b) in a separate studio or conference room. In either case, the location at which the judge sits is referred to as the ‘local site’. The other site or sites to and from which transmission is made are referred to as ‘the remote site’ and in any particular case any such site may be another courtroom. The guidance applies to cases where VCF is used for the taking of evidence and also to its use for other parts of any legal proceedings (for example, interim applications, case management conferences, pre-trial reviews).

2.      VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.

3.      When used for the taking of evidence, the objective should be to make the VCF session as close as possible to the usual practice in a trial court where evidence is taken in open court. To gain the maximum benefit, several differences have to be taken into account. Some matters, which are taken for granted when evidence is taken in the conventional way, take on a different dimension when it is taken by VCF: for example, the administration of the oath, ensuring that the witness understands who is at the local site and what their various roles are, the raising of any objections to the evidence and the use of documents.

4.      It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (Legalisation Office) sopenquiries@fco.gov.uk with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8 below) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.

5.      Time zone differences need to be considered when a witness abroad is to be examined in England or Wales by VCF. The convenience of the witness, the parties, their representatives and the court must all be taken into account. The cost of the use of a commercial studio is usually greater outside normal business hours.

6.      Those involved with VCF need to be aware that, even with the most advanced systems currently available, there are the briefest of delays between the receipt of the picture and that of the accompanying sound. If due allowance is not made for this, there will be a tendency to ‘speak over’ the witness, whose voice will continue to be heard for a millisecond or so after he or she appears on the screen to have finished speaking.

7.      With current technology, picture quality is good, but not as good as a television picture. The quality of the picture is enhanced if those appearing on VCF monitors keep their movements to a minimum.

Preliminary arrangements

8.      The court’s permission is required for any part of any proceedings to be dealt with by means of VCF. Before seeking a direction, the applicant should notify the listing officer, diary manager or other appropriate court officer of the intention to seek it, and should enquire as to the availability of court VCF equipment for the day or days of the proposed VCF. The application for a direction should be made to the Master, District Judge or Judge, as may be appropriate. If all parties consent to a direction, permission can be sought by letter, fax or e-mail, although the court may still require an oral hearing. All parties are entitled to be heard on whether or not such a direction should be given and as to its terms. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. If a VCF direction is given, arrangements for the transmission will then need tobe made. The court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. That party is hereafter referred to as ‘the VCF arranging party’.

9.      Subject to any order to the contrary, all costs of the transmission, including the costs of hiring equipment and technical personnel to operate it, will initially be the responsibility of, and must be met by, the VCF arranging party. All reasonable efforts should be made to keep the transmission to a minimum and so keep the costs down. All such costs will be considered to be part of the costs of the proceedings and the court will determine at such subsequent time as is convenient or appropriate who, as between the parties, should be responsible for them and (if appropriate) in what proportions.

10.    The local site will, if practicable, be a courtroom but it may instead be an appropriate studio or conference room. The VCF arranging party must contact the listing officer, diary manager or other appropriate officer of the court which made the VCF direction and make arrangements for the VCF transmission. Details of the remote site, and of the equipment to be used both at the local site (if not being supplied by the court) and the remote site (including the number of ISDN lines and connection speed), together with all necessary contact names and telephone numbers, will have to be provided to the listing officer, diary manager or other court officer. The court will need to be satisfied that any equipment provided by the parties for use at the local site and also that at the remote site is of sufficient quality for a satisfactory transmission. The VCF arranging party must ensure that an appropriate person will be present at the local site to supervise the operation of the VCF throughoutthe transmission in order to deal with any technical problems. That party must also arrange for a technical assistant to be similarly present at the remote site for like purposes.

11.    It is recommended that the judge, practitioners and witness should arrive at their respective VCF sites about 20 minutes prior to the scheduled commencement of the transmission.

12.    If the local site is not a courtroom, but a conference room or studio, the judge will need to determine who is to sit where. The VCF arranging party must take care to ensure that the number of microphones is adequate for the speakers and that the panning of the camera for the practitioners’ table encompasses all legal representatives so that the viewer can see everyone seated there.

13.    The proceedings, wherever they may take place, form part of a trial to which the public is entitled to have access (unless the court has determined that they should be heard in private). If the local site is to be a studio or conference room, the VCF arranging party must ensure that it provides sufficient accommodation to enable a reasonable number of members of the public to attend.

14.    In cases where the local site is a studio or conference room, the VCF arranging party should make arrangements, if practicable, for the royal coat of arms to be placed above the judge’s seat.

15.    In cases in which the VCF is to be used for the taking of evidence, the VCF arranging party must arrange for recording equipment to be provided by the court which made the VCF direction so that the evidence can be recorded. An associate will normally be present to operate the recording equipment when the local site is a courtroom. The VCF arranging party should take steps to ensure that an associate is present to do likewise when it is a studio or conference room. The equipment should be set up and tested before the VCF transmission. It will often be a valuable safeguard for the VCF arranging party also to arrange for the provision of recording equipment at the remote site. This will provide a useful back-up if there is any reduction in sound quality during the transmission. A direction from the court for the making of such a back-up recording must, however, be obtained first. This is because the proceedings are court proceedings and, save as directed by the court, no other recording of them must be made. The court will direct what is to happen to the back-up recording.

16.    Some countries may require that any oath or affirmation to be taken by a witness accord with local custom rather than the usual form of oath or affirmation used in England and Wales. The VCF arranging party must make all appropriate prior inquiries and put in place all arrangements necessary to enable the oath or affirmation to be taken in accordance with any local custom. That party must be in a position to inform the court what those inquiries were, what their outcome was and what arrangements have been made. If the oath or affirmation can be administered in the manner normal in England and Wales, the VCF arranging party must arrange in advance to have the appropriate holy book at the remote site. The associate will normally administer the oath.

17.    Consideration will need to be given in advance to the documents to which the witness is likely to be referred. The parties should endeavour to agree on this. It will usually be most convenient for a bundle of the copy documents to be prepared in advance, which the VCF arranging party should then send to the remote site.

18.    Additional documents are sometimes quite properly introduced during the course of a witness’s evidence. To cater for this, the VCF arranging party should ensure that equipment is available to enable documents to be transmitted between sites during the course of the VCF transmission. Consideration should be given to whether to use a document camera. If it is decided to use one, arrangements for its use will need to be established in advance. The panel operator will need to know the number and size of documents or objects if their images are to be sent by document camera. In many cases, a simpler and sufficient alternative will be to ensure that there are fax transmission and reception facilities at the participating sites.

The hearing

19.    The procedure for conducting the transmission will be determined by the judge. He will determine who is to control the cameras. In cases where the VCF is being used for an application in the course of the proceedings, the judge will ordinarily not enter the local site until both sites are on line. Similarly, at the conclusion of the hearing, he will ordinarily leave the local site while both sites are still on line. The following paragraphs apply primarily to cases where the VCF is being used for the taking of the evidence of a witness at a remote site. In all cases, the judge will need to decide whether court dress is appropriate when using VCF facilities. It might be appropriate when transmitting from courtroom to courtroom. It might not be when a commercial facility is being used.

20.    At the beginning of the transmission, the judge will probably wish to introduce himself and the advocates to the witness. He will probably want to know who is at the remote site and will invite the witness to introduce himself and anyone else who is with him. He may wish to give directions as to the seating arrangements at the remote site so that those present are visible at the local site during the taking of the evidence. He will probably wish to explain to the witness the method of taking the oath or of affirming, the manner in which the evidence will be taken, and who will be conducting the examination and cross-examination. He will probably also wish to inform the witness of the matters referred to in paragraphs 6 and 7 above (co-ordination of picture with sound, and picture quality).

21.    The examination of the witness at the remote site should follow as closely as possible the practice adopted when a witness is in the courtroom. During examination, cross-examination and re-examination, the witness must be able to see the legal representative asking the question and also any other person (whether another legal representative or the judge) making any statements in regard to the witness’s evidence. It will in practice be most convenient if everyone remains seated throughout the transmission.’

[1] https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-26_03_20-1-1.pdf.

[2] https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak.

[3] https://www.gov.uk/guidance/how-to-join-telephone-and-video-hearings-during-coronavirus-covid-19-outbreak#joining-by-cvp-skype-or-bt-meet-me.

Reversing the burden of proof against an insurance company at trial

The Insurance Act 2015, Section 13A provides:

‘(1)      It is an implied term of every contract of insurance that if the insured makes a claim under the contract, the insurer must pay any sums due in respect of the claim within a reasonable time.

(2)      A reasonable time includes a reasonable time to investigate and assess the claim.

(3)      What is reasonable will depend on all the relevant circumstances, but the following are examples of things which may need to be taken into account—

(a)      the type of insurance,

(b)      the size and complexity of the claim,

(c)       compliance with any relevant statutory or regulatory rules or guidance,

(d)      factors outside the insurer’s control.

(4)      If the insurer shows that there were reasonable grounds for disputing the claim (whether as to the amount of any sum payable, or as to whether anything at all is payable)—

(a)      the insurer does not breach the term implied by subsection (1) merely by failing to pay the claim (or the affected part of it) while the dispute is continuing, but

(b)      the conduct of the insurer in handling the claim may be a relevant factor in deciding whether that term was breached and, if so, when.

(5)      Remedies (for example, damages) available for breach of the term implied by subsection (1) are in addition to and distinct from—

(a)      any right to enforce payment of the sums due, and

(b)      any right to interest on those sums (whether under the contract, under another enactment, at the court’s discretion or otherwise).’

It is therefore an implied term of an insurance contract that a valid claim will be paid within a reasonable time following notification of loss, including any consequential loss that is not too remote, e.g. loss of use.

Where prima facie, a valid claim has been properly notified, unless the insurance company can prove that Section 13A(4) of the Insurance Act is engaged, then by parity of reasoning, they are liable for breach of contract in refusing indemnity, because they have no technical defence to breach of Section 13A(1) of the Insurance Act 2015, and in these circumstances, it is axiomatic that a refusal of indemnity is a material breach of Contract. That is because a contract of insurance is a contract of indemnity.

In other words, in proceedings where breach of s.13A has been alleged, the onus of proof will shift to the insurance company to prove that there were reasonable grounds for disputing the claim. If the insurance company cannot discharge the burden of proof at trial on that issue, unless grounds exist for vitiating the contract, their defence to the entire claim will fail. 

In which case, in addition to damages and interest, an order for costs to be awarded against the Defendant insurers on the indemnity basis, may reasonably be sought where the court finds that insurers did not have:

  • a valid ground for disputing the claim; and
  • any reason to believe that the claim was invalid, i.e. because they were incompetent in their investigation of the claim and in consequence had proceeded upon a false assumption, or e.g. by refusing to comply with a pre-action protocol, had behaved with cynicism, in material breach of the CPR.

This issue has arisen in a commercial case in which I am appearing for the claimant.