COVID-19 and FD Trials

The authors of this paper previously published its first version in April of 2020 at a point that was then generally felt to be the height of the pandemic. Lockdown One was fully implemented, and the Court system was scrambling to produce guidance as to how it would continue to operate. Trials were vacated at will; often with Solicitors receiving no formal notification from the Court as the remaining staff in Court centres across the jurisdiction simply could not keep up with the fallout of Covid-19. At that time, the more cultured of the authors deemed the below an appropriate quote to begin:

“But now I am cabined, cribbed, confined, bound in

To saucy doubts and fears”

(Macbeth, Act 3, Scene IV)

On this occasion, the less cultured author would like to stress he is sick of Zoom quizzes and January was not dry. Be that as it may, the last 12 months have seen extraordinary, unprecedented and perhaps permanent changes to the way the Court system operates. Remote trials are now commonplace on various platforms including CVP, Teams and Skype. There is even some precedent for fast-track trials taking place by telephone; more on that troubling development later. The title of this paper is not ‘COVID-19 and Trials 2.0’ or even ‘3.0’, which might seem appropriate. The only amendment to the title from last time is to add ‘FD’ before ‘Trials’. This is the issue of concern to our Civil and Insurance Fraud team (‘the team’), from whom many of the examples and trends below come; we are very grateful for their contributions.

In response to the latest lockdown, Manchester’s DCJ published updated guidance on 12 January 2021. That guidance confirms that until further notice the presumption is that all hearings will be dealt with remotely or as a hybrid hearing (unless the interests of justice require otherwise). All cases already listed in person will be reviewed and appropriate directions made. It stresses that parties will be given as much notice as possible, but recent experience suggests that a trial switching to a remote hearing can happen at 4.30pm the day before: be warned! The burden is placed on Solicitors to be proactive, to attempt to agree the best way to proceed and, in the absence of agreement, to request a specified method for the trial.

This has been a common theme of the last 12 months: the Courts shifting a significant amount of responsibility to the parties to play a proactive and active role in arranging trials. The days of simply waiting for a Court notice are gone, and Judges are becoming, predictably and understandably, increasingly intolerant of cases not ready to proceed seamlessly at a remote trial. The threat of wasted costs orders is no longer just a threat; “show cause” orders at adjourned trials are now commonplace.

Building on our DCJ’s rebuttable presumption of a remote hearing, the issue of remote evidence has also been considered recently (in November 2020) by the High Court in Langley v GMB & Ors [2020] EWHC 3619 (QB). The case involved an application to permit a witness for the Defendant to give evidence remotely which was granted by Mrs Justice Stacy on the basis that the matter could proceed fairly with the witness attending by remote means. The witness suffered from medical conditions, meaning she was in a high-risk Covid-19 category (supported by medical evidence before the Court), and had been shielding throughout the pandemic. The Claimant opposed the application on the basis that she should be in the room for the purposes of cross-examination. The Learned Judge concluded that the ‘formality, control and integrity of the Court proceedings can be maintained whilst she gives evidence remotely’.

For the time being at least, it seems, remote trials are the new norm. There are practical steps that need to be taken by Solicitors prior to any remote trial (especially for cases involving FD), and there are other actions which should be taken if an in-person trial is considered necessary.

Every one of the platforms used for remote trials is prone to technical faults, and cases are routinely adjourned because of them. Often one particular party cannot be seen and/or heard once connected to a link sent by the Court, through no apparent fault of their own. Experience shows that the platforms struggle to allow video footage (CCTV/surveillance etc.) of any kind to be played in a continuous stream, leading to awkward frame-by-frame stills being used. This clearly does not allow any effective cross-examination, nor does it permit a Judge to properly consider what is shown. If the technology holds up, the most common issue which then arises is in relation to witnesses having, and being able to navigate, a trial bundle. A witness attempting to connect to a remote trial using a mobile phone and then attempting to look at the bundle on the same phone both detracts from their evidence and reflects poorly on the preparatory work done by the professionals calling that witness.

It is imperative, therefore, that at least 48 hours before a trial, the following steps are taken:

• The party and any witnesses have either a paper bundle sent, or electronic bundle emailed to them. It should be confirmed as having been received – probably more than 48 hours before the trial. It is not sufficient to simply email the witness their own statement – think of the road traffic accident trial in which the witnesses have not been given the plan or photographs.
• The party/witness is asked to install any pending updates for the technology to be used for the trial.
• The party/witness is sent a link using Skype or Teams (depending on the platform being used at trial) to carry out a test-run. Please note that CVP is Court-controlled, and so its use cannot be replicated, so use an alternative platform for the practice session.
• It is necessary to ensure that the party/witness can navigate an electronic bundle on a separate device to that being used for the link - NB a mobile phone is a last resort for this.
• It must be stressed that the party/witness understands that this will be a formal Court hearing, that they are to be dressed and behave appropriately (smoking during the hearing, we kid you not, is unlikely to endear oneself to the tribunal), must be available all day and must be in a quiet place in which they will not be disturbed.

Solicitors must also recognise that there are further practical difficulties when a party or witness requires a translator. This may be a good reason for a case to be heard in person (as it slows down the trial very significantly), although remote trials involving translators have taken place successfully. By unanimous agreement of the team, the best way to manage this is for the translator and witness to be in the same room, socially distanced of course. The translator can be used for the pre-trial conference and then, once sworn in by the Court at the start of the trial, can translate the proceedings contemporaneously to the witness whilst on mute until it is time for that witness to give evidence. The ease of having both witness and translator in the same room and on the same link cannot be understated – without this step being taken there has to be another connection between them during the trial, likely only a mobile phone, for the proceedings to be translated when the witness is not giving evidence.

One other matter to consider, raised very recently by a resident District Judge in Manchester, is telephone evidence. This was addressed in the context of an elderly witness unable to attend Court in person, and neither having nor being able to work the technology even if provided to him. A hearsay notice accompanied his witness statement and, predictably, the Court attached little, if any, weight to his evidence, as his evidence could not be tested by way of cross-examination. The District Judge referred in her judgment to the Defendant not having explored creative ways for the witness to give evidence such as by telephone, which he would surely have been able to work. This emphasises the burden the Courts are placing on Solicitors to be proactive about this, and certainly it is something worth exploring in a case of last resort – in that case it was, as the Defendant was running LVI as a defence, and the witness was the driver of the vehicle in which the Claimant was the passenger.

However, telephone evidence is usually seen as being prejudicial to the party using it. In a very recent example, FD was alleged in a causation trial. The entire hearing was conducted by way of the Claimant giving evidence by telephone. There was simply no means by which the identity of the Claimant could be verified, nor could the Claimant’s body language be assessed in any way. Counsel had very little chance of an effective cross-examination. The prospects of obtaining a finding of FD have reduced significantly with the introduction of trials by video: in our collective experience, the prospects of FD on the telephone are close to nil. A trial-by-telephone should be avoided at all costs.

The widely-held view is that whilst FD findings have been secured in remote trials, they are few and far between, and certainly well below the level being obtained pre-Covid. An experienced Circuit Judge in the Midlands recently remarked that he would take some persuading to make a FD finding over a video link. This was as we feared in April 2020, and the points made then ring as true as ever now. One such problem cited was in cases where collusion or conspiracy (fraud rings, suspect hire claims etc) are issues, there is no prospect of the Court being able to satisfy itself that “off stage” assistance is not being given. Messages could be sent to a witness giving evidence via WhatsApp, and these could be accessed without too much risk of being seen. Experience now tells us that witnesses in such cases are often invited to give evidence from conference rooms at their Solicitors’ offices, which might be seen as heightening that risk. Witnesses have been seen looking off screen during the course of cross-examination, and, whilst that can be brought to a Judge’s attention, other than a reminder that their evidence is their own to give without being able to see what or who else is in the room, little can be done.

The aim of the article is not to encourage a 100% negative response to the exhortations of the Court to conduct a remote trial. Consideration will have to be given to every case individually. It is important for our Solicitor and Insurer clients to triage cases at an early stage by way of a conference to determine which cases have a good prospect of a FD finding, which witnesses are required to give oral evidence, and by what means would they should do so (it may be that witnesses on the Defendant’s side giving evidence remotely in a hybrid trial assists). It must then be decided if the prospect of an FD finding is likely to be diminished if the trial proceeds remotely and why. If that is the view taken in the specific case, the Court needs to be notified as early as possible with cogent reasons as to why the trial is required to be in person, or as HHJ Bird puts it, why the interests of justice require it. The allegation of FD itself is now not enough.

Remote trials are here to stay, for now at least. The limitations and practicalities of the same have become clearer in the last 12 months, and it is ever more important to manage the path to trial with care. This takes time and effort. More of both will be required, since all historic trends show that in times of recession, fraudulent claims increase in direct proportion to falls in economic activity.

On 17 March 2021 the Lord Chief Justice said the following: ‘we have seen that technology has many advantages but, in some circumstances, it can also have the effect of slowing down work. Over the next few weeks and months as the number of people who have been vaccinated against COVID increases and restrictions begin to ease across England and Wales, it will be possible and desirable to increase attendance in person where it is safe and in the interests of justice. This will be important to maximise the throughput of work’. One suspects that there will be somewhat of a trickle-down effect to this and we can expect remote hearings to continue to be the norm as restrictions are slowly eased; we hope that by August the above guidance is redundant; we hope…

Just to satisfy the more cultured of the authors we end with:

“To-morrow, and to-morrow, and to-morrow, creeps in this petty pace from day to day”

(The Scottish Play, Act 5, Scene V).

Simon McCann & James Paterson