Remote hearings – the pitfalls

Everyone involved in court cases in England and Wales over the last 18 months has needed to get to grips with remote hearings and the various technical software platforms being used to facilitate such hearings. Many professionals are being praised for their dedication to their profession in being able to keep family cases moving and allow parties to reach some kind of resolution in this pandemic world.

However, there are times where people have nearly gotten themselves (or their clients) in trouble using the remote technology. A large number of hearings within either family or civil proceedings take place using Cloud Video Platform. This is the court’s preferred software as it allows all the necessary participants to a case to appear on screen but the judge has the ultimate power to mute parties or even eject them from the proceedings just like they would normally do in a physical court room. However, being on a screen rather than in person means even the best professional can sometimes forget themselves.

The recent case of McMonagle v Harvey and others [2021] EWHC 1374 (Ch) highlights this. This case was not a family case and concerned unfair prejudice and the control of a company. However, it shows how anyone on a remote hearing could find themselves in difficulty and potentially influence the outcome. During this case the barrister representing the petitioner appeared to be nodding during the cross-examination of one of his own witnesses, thereby potentially indicating to the witness that they were answering the questions correctly and in a way that helped the petitioner’s case.

Whilst this particular barrister may or may not have done this during a physical hearing, it was more noticeable by the judge during the virtual hearing where all parties are seen on the screen.  However, the judge noted that the barrister also did this head nod when the judge had been addressing both parties’ counsel together. Therefore the judge was satisfied that this was an “unconscious listening response rather than an attempt to indicate approval or otherwise to what was being said”.

As this case demonstrates, it is important that all parties involved in remote hearings treat them and act in the way they would as if they were in a physical court room. In family cases this also means making sure the parties to the case are the only ones present since most family cases are heard in private and would be closed off to anyone not connected to the case. It also means looking presentable and remaining respectful to the Court throughout.

Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Suffolk.

Ipswich Family Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email [email protected]