Part 36 offers are a useful tactical step a party can take in legal proceedings to attempt to focus the other side on settling proceedings. It can put pressure on an opponent to come to the table and settle a case whilst importantly protecting the offeror’s position on costs.
In these uncertain times, courts are managing proceedings in a variety of different ways from telephone hearings for applications to trials by video conferencing.
We recently conducted a remote trial in the Reading County Court by which all parties, legal representatives and witnesses attended by video conference.
We successfully acted for a Claimant in a breach of contract claim against the operator of the Holiday Inn Farnborough who instructed Fieldfisher LLP. The trial was heard on 25 June 2020 before Deputy District Judge Hunter. Emma Hynes of Hardwicke chambers appeared on behalf of the Claimant.
The claim concerned a contract for the use of sports facilities within the Holiday Inn Farnborough. The Defendant, the operator of the Holiday Inn Farnborough was found to have breached the contract by failing to give the Claimant its full contract notice period of 6 months. As a result, the Claimant suffered loss of profit within the 6 month notice period that should have been provided and in addition suffered consequential losses following the end of the notice period. The Defendant denied the claim and relied on the doctrine of frustration on the basis that the pool temperature was unable to be regulated.
The Court dismissed the defence and awarded the Claimant substantial damages for the loss suffered as a result of the Defendant’s breach.
Both Counsel for the Claimant and the Defendant and their witnesses attended by video link. Both parties also had solicitors in attendance who could observe. Deputy District Judge Hunt appeared by video and telephone link. A chatroom was provided which proved helpful when the Defendant’s witness did not know how to give an oath. It was posted in the chatroom and the witness was able to read it out.
As remote trials appear to be the way forward, albeit at least for the foreseeable future, we have put together some advice to you may wish to consider for those hearings proceeding remotely.
- Liaise in advance with the court to see how the trial is taking place. As the software being used varies from court to court.
- Discuss in advance with witnesses how they intend to be sworn in to give their evidence. This would be either by swearing on a holy book or giving an affirmation and give them the words for the swear/affirmation in advance. If they are swearing on a holy book, ensure that they have one to hand!
- Check your video and microphone equipment in advance of the trial. This is especially important for witnesses who will be required to use video and sound equipment to give their evidence. It is worthwhile testing camera angles to ensure that witnesses full faces are in view of the camera. It may also be sensible to conduct a test with your client, counsel and witnesses in advance of the hearing to iron out any technical issues.
- Further, also consider your video background. Remove any confidential information and distractions (including family members!)
- Have a separate platform for making short discussions between clients and legal representatives whilst the hearing is proceeding. A WhatsApp group chat is a quick, easy and free tool that can be accessed either by smartphone or on desktop. Pre-trial, during lunch and post trial – schedule in a video meeting such as by Zoom to discuss issues.
- Whilst the hearing is taking place, it is a good idea to mute your microphone when not talking. This eliminates any unnecessary background noise.
- Some courts may still require a hard copy of the bundle so it is worth checking in advance. If an E-bundle is required, use bookmarks to help the user navigate. If both an E-bundle and a hard copy bundle are being used, try to ensure that the page numbers on both match up. Otherwise, ensure that during the hearing, both paper and e-bundles page references are given.
- Ensure that skeletons contain a reading list for the judge before the trial takes place. The time estimate for the trial may have been made prior to the COVID-19 pandemic. Remote trials generally take longer so it is prudent to ensure that the judge can focus on what is important to ensure the trial is managed efficiently and effectively.