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April 28, 2020

Last week I had the slightly surreal experience of a remote hearing in (how is it “in” if it’s remote?) the Court of Appeal. Here, for what they might be worth, are my thoughts about the process.

The Court of Appeal, for the time being at least, uses Skype for Business as its video platform of choice. That might change as Cloud Video Platform is rolled out. Until then it’s SfB unless for good reason the presiding Lord Justice is persuaded that an alternative should be used.

Helpfully, the Civil Appeals Office sets up a trial run to ensure that all counsel (and presumably solicitors and parties, though in my case counsel were without solicitors and without clients) can be contacted and can connect. I was informed of the time for the trial run about 24-hours in advance. I was given the option of asking for an alternative time, but I suggest that if you’re due to be busy on the day before an appeal hearing you contact the Civil Appeals Office sooner rather than later to explain that you’re not available on that particular day.

The hearing I was in was a short one and dealt with a very specific point about DNA testing via siblings (or, as I pedantically referred to them, “presumed siblings”); we don’t yet have a judgment, but watch this space. As it was short, and as it was counsel only, it went pretty smoothly.

All three counsel appeared from home. So did the President and so, I think, did Nicola Davies LJ – though I never actually saw her. Peter Jackson LJ was at the RCJ, in splendid isolation. As it was the C of A, counsel were careful to speak only when spoken to and everybody was terribly polite. Hard to imagine three LJs and three counsel all trying to talk at the same time on a video link.

I was using the SfB app on an iPad. I discovered too late that iOS can’t produce gallery view, so I was stuck with being able to see only myself and whoever was speaking at any given time – hence not seeing the almost silent Davies LJ. I suspect it would have felt better to be able to keep an eye on which LJs were yawning and which of my opponents was trying not to laugh, so next time I’ll use a different device.

I suspect that in a physical courtroom we’d have had a judgment on the same day. With typical self-deprecation the President said this couldn’t be done because he couldn’t work out how he and the two Lords Justices could consult remotely in short order to produce a judgment. We were told we’d have to wait about a week or two.

The whole thing was dealt with very efficiently by the Court staff. Instead of having to catch a train at about 7am, trail up to London, spend a fortune on a taxi because I hate the Tube, worry about the state of my wig (counsel are not robed at remote hearings) and generally fret about every aspect of it I was able to make myself comfortable at my desk ready for a 10am start (30 minutes earlier than the C of A’s usual kick-off time), drink things that I’d never drink in court (one turns one’s sound and video off when not speaking), pull all kinds of faces, stroke the cats and generally relax into the hearing. However, I’m not sure it would be so easy in a more complex case or in a case in which I was for the appellant – in this one I had the luxury of being for the second respondent.

I have linked a couple of documents that were sent out when permission for the appeal was granted. One deals with the mechanics of the hearing. The other deals with the Court’s requirements for the electronic appeal bundle. We had a small appeal bundle and only four or five authorities. In a heavier case I imagine the job of the solicitors in preparing the bundles will be a tad tricky, so if that’s your job don’t leave it until the last minute. All concerned should of course keep in mind the clear duty on all parties to work collaboratively in ensuring that the bundle is ready on time and that it meets the requirements set out by the Court.

Finally, the cautionary tale. The dry run had a bit of a twist. There we were, three barristers and two court staff talking amongst ourselves for a few minutes while one barrister tried to get her video connection to work. I can’t recall who said what, but I wish the court staff had mentioned that we were not alone before we heard a vaguely familiar voice saying something like “I’ll leave you to it now. I’m off to prepare for this afternoon’s hearing”, which was followed by the following words appearing on the screen: The President of the Family Division has left the meeting. Always a good idea, I now know, to keep an eye of the list of participants.

Stuart Fuller