Can I Skype the Judge?

16 Nov 2018

As part of the Dispute Resolution Briefing Autumn edition, Kelvin Farmaner looks at how cases in the court room could one day be a thing of the past.

Most people think that all court hearings in civil cases take place before a Judge in person. They are therefore surprised to learn that for many years many simpler procedural hearings have been dealt with by telephone conference call. When it comes to the trial of a case the general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved (a) at trial, by their oral evidence given in public; and (b) at any other hearing, by their evidence in writing.

As ever this is subject to any court order to the contrary. There is power, for example, under the current rules, for a Judge to allow a witness to give evidence through a video link or by other means. Several cases have looked at when this power should be used. As is often the case each matter will turn on its own facts. However, it is clear that the court will make this decision by reference to what is known as the ‘Overriding Objective’. This states that the Court will deal with cases justly and at proportionate cost. As stated above, the starting point is that a witness will ordinarily given their evidence orally at trial and in public, but the courts can make a different decision.

Court guidance says that video conferences may be a convenient way of dealing with any part of proceedings: they can involve considerable savings in time and cost. Their use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by using them for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of video evidence is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.

The Courts have for some time been preparing to make much greater use of video hearings and judges appearing to the parties to a dispute via a computer screen. This drive towards modernisation may have been dealt a blow by a recent case in which one of the country’s most wanted alleged fraudsters impersonated a judge and persuaded his victim to send him money.
City of London Police recently released details of a number of individuals sought for allegedly stealing more than £1million in total from the public. Among them was 48 year old Daniel Sheridan, from Wolverhampton, who is wanted in connection with fraud and money laundering offences. The police have said that one of these offences involved calls purporting to come from a court and then a conference call where the fraudster claimed to be a judge. The impersonator is said to have threatened his victim with imprisonment for contempt of court if transfers were not made and subsequently around £79,000 was moved to Sheridan’s bank account.

The current programme of court closures and cost cutting means litigants will increasingly find themselves further away from their nearest court. It is therefore likely that the use of conference calls and video calls will become more widespread. In order for this to take place smoothly the courts will need to update the rules and guidance as to when this technology will be used and what guidance litigants (especially increasing numbers of litigants in person) will be given about their remote exchanges with Judges.

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Kelvin Farmaner