UK IP courts go virtual, as COVID-19 shutters courtrooms across the globe

Merpel attacking her remote working capabilities with the concentration and
passion one would expect

The legal profession is lucky.  Our jobs can be performed anywhere.  All we need is a laptop and a phone.  However, when it comes to litigation we still prefer our analogue world.  We like the tactile nature of hard copy paper bundles that we mark-up and flag.  We like walking into a courtroom where we can we see the whites of our opponent's eyes, assess whether the judge is interested or annoyed at a line of argument and observe whether a witness is fidgeting in the box or making nervous glances at the lawyers.  But in this new reality, we need to do what is in the best interests of everyone.  That may mean that, as far as possible, litigation has to go full virtual.  And who better than intellectual property lawyers to embrace and lead the change?

For years, the UK's courts have been equipped to perform hearings remotely.  Whether it was an emergency call to the judge on duty over the weekend to get an urgent injunction or videoing in a witnesses from another location across the globe, the Business and Property Courts of England & Wales (which includes the Patents Court, IP list and IPEC) have embraced technology for years as reflected by our current Civil Procedure Rules.  With COVID-19 closing courts in other jurisdictions, the courts in the UK have remained operational.  It is "business as usual" but not as normal; court business is being conducted in the "new normal". 

Two weeks ago, Her Majesty's Court and Tribunal Service (HMCTS) published this advice and guidance to all court and tribunal users during COVID-19.  The Lord Chief Justice - Lord Burnett of Maldon - then issued this statement which emphasised the increased use of telephone and video hearings:

"Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility. 

Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters."

Judges have the authority to direct whether, when and how to conduct a hearing, having front and center their duty to uphold the fair administration of justice and maintaining public safety.  In Guidelines first published two weeks ago and updated on Friday, judges are encouraged to use video and telephone hearings where possible and appropriate.  In making their decision as to whether a hearing is suitable to be held virtually, the judge will consider the nature of the maters at stake in the hearing, issues that may be presented by the technology and issues around public access to or participation in the hearing.

Recognising that the use of virtual courtrooms and hearings will increase in the current climate, HMCTS is rapidly extending their existing technology capability and capacity.  In particular, the Guidance states that

• "Teleconferencing We have significantly increased the amount of teleconferences we can run using BTMeetMe. Participants will be sent conference call phone numbers, and no specialist equipment is required other than a phone (and any speakers that you may wish to use).  

• Videoconferencing For videoconferencing we have started using Skype for Business on HMCTS and judicial systems. Participants in a hearing do not need Skype for Business to join these videoconferences, however they will need the free Skype meetings app. Each participant will receive instructions and a link to click to join the hearing, as a ‘guest’. Once users click on the link, they 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, users go to the Skype Meetings App sign-in page, enter their name, and select 'Join'"

The new Coronovirus Act 2020 also includes powers to expand availability of video and audio link to court proceedings to ensure that the "courts can continue to function and remain open to the public, without the need for participants to attend in person."  As the Guidance reflects, by this week the courts will have increased the capacity of their "cloud video platform" (CVP) which will provide video hearing capability for any courtrooms that have suitable equipment.   But that is not all!  The Guidance continues:

"Looking ahead, we are expanding the capacity of our fully video hearings solution, which has been used on a small-scale in specified civil, family and tax tribunal hearing types. We want to make sure this bespoke video hearing solution is robust and can handle significant volumes of hearings, as quickly as possible. No bespoke software will be needed to join hearings in a CVP room or for fully video hearings. 

These measures are already enabling hearings to go ahead effectively. Examples include a 5-day trial completed over video in the Court of Protection and nearly 500 audio hearings completed."

In the past two weeks, a number of IP hearings have already been conducted remotely.  Most of the hearings Merpel is aware of have been conducted by Skype for Business.   The judge's clerk runs the hearing using this platform.  Everyone who is due to participate in the hearing is emailed an invitation.  Participants can then download the application and log-in following the instructions.  The clerk then records the entire hearing using the Skype for Business software (see paragraph 21 of the newly published Protocol - remember its illegal to record or publish any court hearing without permission). Those who have been involved in the Skype hearings have indicated a stronger preference to them over a normal telephone conference call.

A fundamental pillar of the UK's court system is that justice is done in the open.  As the Guidelines and the Protocol state, public access to virtual hearings remains ever important.  A range of measures will continue to support the principle of open justice, particularly for the media (see last week's example where journalists were able to attend criminal cases from home).  These measures include:

• With the permission of the judge, a third party may join the hearing remotely
• Transcripts for hearings in those jurisdictions in which we record the hearings. Any party or interested person is able request a transcript. Judges may direct that the transcript be made available at public expense where appropriate
• With the permission of the judge, an audio recording of a hearing can be made available to be listened to in a court building

The media and third parties who wish to observe a remote hearing should request to be included in advance of the hearing so facilities can be made available.  Further, the new Practice Direction 51Y - which ceases to have effect on the date that the Coronavirus Act 2020 ceases to have effect - records the circumstances in which the court can direct that a remote hearing be conducted in private.  Importantly where a media representative is able to access proceedings remotely while they are taking place "they will be public proceedings" (see paragraph 3).

Mr Justice Birss is ready for remote
hearings, just excuse his new usher

Mr Justice Birss presided over three hearings two weeks ago and several more this past week, including a Case Management Conference in the IPEC in the retrial for Martin v Kogan (the Florence Foster Jenkins screenplay case - here).  He told Merpel that:

"In response to the current pandemic the Patents Court, as part of an initiative across the Business and Property Courts, has started carrying out hearings remotely. Two weeks ago, a hearing took place in open court using Skype for Business which was able to accommodate counsel who was self isolating at home, two other counsel, several solicitors and one of the individual parties, all of whom attended using that video conference system. Further similar remote hearings took place that week and have continued throughout this past week.  Remote hearings take a little getting used to, but it really does work quite effectively."

Last week HHJ Hacon, sitting in the High Court, concluded a remote two-day Pre-Trial Review in the ongoing Conversant v Huawei & ZTE case.  As reported by the AmeriKat, the FRAND trial was due to take place at the end of April.  At the Pre-Trial Review the defendants applied to vacate the upcoming trial.  Despite creative proposals from an eager claimant to adapt trial timetables, produce longer written arguments and flexible scheduling, a 3-week trial with multiple expert and fact witnesses (who would normally be cross-examined in person) in circumstances where barristers and solicitors are juggling new realities on the home front was just not realistic.  

There will always be technological issues to iron out as litigants get used to the system.  The system is working well for shorter hearings and non-witness trials (the suitability of which is recognised at paragraph 12 of the Protocol).  Merpel encourages you to comment on your experience of preparing for and participating in virtual hearings (she has collected some points from the last two weeks of hearings, below).  She will filter your comments and suggestions (attributed or not as you prefer) back to the Court as they develop and refine the system.

If the IP community in London bands together to share their best practice and guidance, we can ensure that the court system remains operational and as user-friendly as possible.  We can also share our learnings with lawyers and judges in other jurisdictions.   As lawyers it is our responsibility to ensure that during times of turmoil access to and the administration of justice is maintained and that those who serve our public institutions are kept safe and kept employed.

It is also our responsibility to ensure that those who are most vulnerable (and even more so now) continue to have access to representation in the Court.  Merpel suggests donating (at a minimum) what would have been your over-ordered Pret lunch (that you would have mindlessly devoured in a court consultation room) to Support Through Court - here.

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Remote Hearing Tips

Bubbles did not follow Rule 2 of good
videocon hygiene

1.  Dial-in 15 minutes before to make sure everyone is connected, audio is optimised and feedback/echo issues are identified and curtailed.  Make sure you are in a quiet space where you will not be disturbed.  This is basic conference call hygiene.

2.  Dress for the camera.  For counsel appearing on video, remember to wear solid suits/ties/shirts - patterns (particularly stripes) disrupt, distort and can delay images.

3.  All participants, save those who are speaking must be on mute.

4.  Establish your own separate secure instruction channels to ensure efficient and quick communication between solicitors, barristers and clients via chat platforms and/or a separate dial-in for your legal team should barristers need to seek instructions.  The court provides a private consultation facility, but as the court recognises:

"Legally privileged conversations with clients are fundamental to representative justice, and are a necessary part of our justice system. Our bespoke product for fully video hearings, which is subject to testing at the moment, provides for this in the form of private consultations. We are working to scale up this solution, as we are doing with our other capabilities, as soon as possible."

5.  Prepare remote e-bundles as far as in advance as possible.  A core updated bundle can be uploaded to a secure shared cloud-based drive that can then be added to centrally to facilitate quick updates.  Once the judge has the first e-Bundle pdf, keep a separate document of all the updates made to the bundle in a separate Word document so that the judge and his/her clerk can keep track of any new documents that may have been added to the e-bundle.

6.  Provide access to skeletons to third parties in advance where possible to enable third parties to follow along during the hearing and transcripts and approved judgments afterwards (particularly where judgments are given ex tempore and are not recorded in the transcript).

7.  If third parties wish to attend, help facilitate access and flag up confidentiality concerns with how those can be managed (including dialing off a call and then being contacted to rejoin).

8.  Be tolerant and patient.  Things take awhile to bed down and change always takes some getting used to.


Resources:

Guidance - HMCTS telephone and video hearings during coronavirus outbreak

Protocol Regarding Remote Hearings (20 March 2020)

Practice Direction 51Y (116th Update to the Civil Procedure Rules)

Guide 

Civil Procedure Rules 23

Coronavirus Act 2020

Rolls Building Daily Cause List