FOIL calls for presumption against remote trials

The Forum of Insurance Lawyers (FOIL) has called for a presumption in the Civil Procedure Rules that trials and hearings involving oral evidence or litigants in person should not be heard remotely.

It said current data suggested that there was “no certainty” that remote trials were cheaper, “raising the possibility that a sub-optimal process may be adopted, for no discernible benefit to the parties or in costs”.

FOIL went on: “Whilst cross-examination is possible by video, the advocates’ and the judge’s ability to take into account body language, reaction and demeanour are significantly impaired…

“Although it is possible to set up systems to enable senior and junior counsel, instructing solicitor and client to communicate privately during the hearing, it is not as effective as in a court room.

“A claim reaching trial is, by definition, likely to be finely balanced and any impediment to an effective hearing is felt to be unacceptable. This is particularly the case where there are allegations of fraud, issues of credibility, or where the judge needs to form a view on capacity.”

In a position paper on civil Litigation post-Covid, FOIL said it was harder to project the dignity of the court in remote hearings.

“Court architecture and dress requirements have been developed over time to deliver that impact. Coming to the court building and taking a public oath or affirmation are steps which cannot be properly replicated by video.”

However, FOIL said there should also be a presumption that interim applications, case management conferences and other administrative hearings not involving oral evidence, detailed assessments and appeals should be heard remotely.

The organisation said that in its view best practice would be for hearings to be fully in person or fully remote, rather than hybrid.

FOIL said it was also important that a “standard, workable platform” was identified and adopted for use in all civil hearings.

“Leaving the choice of platform to the judge introduces significant inconsistency as to the operation and function of the system and requires law firms to be able to support a range of options.”

FOIL called for the right to serve documents by email to be included in the CPR as of right, without the need for permission.

As a first step, FOIL suggested that the right to serve documents by electronic means without written authority should be limited to solicitors’ firms and to service by email.

Since it was “vital” that the email address to be used for service was “identified, clear and certain” and easily obtained, FOIL said the Solicitors Regulation Authority should include on its website service email addresses for all regulated entities.

Among other recommendations, FOIL said the proposed reduction in court staff numbers to be achieved by 2024-25 should be reviewed in the light of post-Covid changes and there should be re-examination of court service technology requirements.

The original MedCo rule banning remote medical examinations should be reinstated, apart from in higher value claims, where they should be considered where appropriate.

Shirley Denyer, technical director at FOIL and author of the report, said the organisation recognised the “incredible response” to the pandemic from the court service, the judiciary and legal representatives.

“We hope to form a consensus which can be used to lobby for procedural reforms and bring them through to implementation.

“It’s vital that we use the forced change during the pandemic to build an improved system for the future.”

40 views1 comment