Our panel member William Norris QC gives his personal insights into online hearings whilst as Chair on panels for Sport Resolutions
REMOTE HEARINGS; HERE TO STAY OR JUST WHILE NEEDS MUST?
Writing as someone whose grasp of the digital world would be on a par with Trump D’s understanding of international affairs, I am pleasantly surprised to be able to report that my experience of remote hearings has – at least so far - been uniformly good. It would not have been very long ago that even a telephone hearing for directions in a QB case would have been seen as ground-breaking whereas now they are commonplace. Soon we shall be doing or at least contemplating full blown trials of civil claims remotely and that may not be just during the lockdown. Whether the impetus for that beyond the current crisis could be the Governments’ realisation that this might save money in terms of court resources and judicial numbers or because we practitioners find that remote hearings have many advantages only time will tell. Suffice it to say that, whether in the short or the long term, we need to be prepared for this new and, in many respects, very different way of working. I therefore offer my own experience of remote hearings which may provide some reassurance to those of you who have reservations about the practicalities or efficacy of that process. Quite simply, if I can manage it, the rest of you need not be too concerned.
My own experience has been as one of the chairmen of the various panels run by Sport Resolutions including the National Anti-Doping Panel and the Disciplinary Tribunal of World Athletics and also as a chairman of the FA and British Horseracing Authority’s independent judicial panels. In all of those tribunals I have been involved in hearings that have been conducted remotely either wholly or in part. So long as the technology is managed efficiently – and in those hearings it has always has, at least so long as I have nothing more challenging to do than clicking in the appropriate place and at the appropriate time - I believe they work well. The fact that some lawyers or participants would rather engage in conventional, in-person, hearings does not mean that one held remotely has not been fair. Certainly, there are different dynamics, particularly around the human inter-reaction between witness and questioner and between advocate and tribunal. But whether that materially alters the instinctive assessments that are a feature of the conventional process and, if it does, whether one loses anything that is truly useful and reliable is open to question.
Obviously, there are certain practical differences. It may not be quite so easy for an advocate in mid-flow to take instructions from a client or an expert in a different place. But already we have seen that some legal teams have, for example, established their own WhatsApp groups which may actually provide a more reliable (and congenial) means of taking instructions than the halitotic stage whisper in the ear or an illegible handwritten note and it may also be quicker than trying to find the breakout chatrooms allowed by some systems (and the risk that a private exchange may end up on the record somewhere).
Perhaps the most vivid example from my own experience of what can be made to work was an anti-doping case involving an international athlete and an alleged ‘whereabouts failure’ – that is, failing to be available to give an out-of-competition sample at a designated time and place. I was the chairman, sitting in London, with a member of the Sport Resolutions Secretariat whom managed the whole process. One of my panel members was in Sweden, the other in Miami. The prosecutor (on behalf of the Athletics Integrity Unit) was in Lausanne. The main witness was in Texas and the athlete and the athlete’s counsel were in California.
Obviously, this sort of hearing can only work satisfactorily if everyone is co-operative (and has a reasonable internet connection) and if people are more than usually careful to avoid interrupting or speaking over each other. In the example I give, that co-operation included the US West Coast contingent being ready to start at 0600 their time which may be sub-ideal but was agreed without complaint by those affected. And the hearing itself involved cross-examination on issues of fact and oral submissions. Speaking only for myself and the tribunal, I thought the process worked extremely well and it would have made no real difference if I had also been connecting remotely although I felt more comfortable being in the same room as the member of the secretariat who was doing all the organising. One other point is worth mentioning. It is that I don’t particularly favour hearings where only one of the principal parties is in the same room as the tribunal (or one or two members of it). I am not going so far as to say it can’t be fair but I can see that there could be a perception by the remote participant that the other party had some sort of advantage by being with the tribunal. Hence I tend to favour having either all parties present or all attending remotely.
This article was originally published by 39 Essex Chambers.