The virtual Court of Appeal

Last week I watched a Court of Appeal hearing. As a reporter and editor covering the law, that’s something I’ve done from time to time over the past 20 years. But this occasion was different: I was sat in my kitchen, the documents were all on Dropbox and the hearing was taking place on Skype for Business pursuant to the Practice Direction on Video or Audio Hearings in Civil Proceedings during the Coronavirus Pandemic.

All those taking part (Lord Justice Floyd, Lady Justice Nicola Davies, Lord Justice Arnold and three barristers) were at home, so we had a chance to view their interior décor and book collections. The other 15 or so people “present”, including clerks, solicitors and the media (i.e, me) were watching and listening, observing the judges’ clear instructions that everyone should be muted unless they were speaking.

For the most part, the technology (which was administered by one of the instructing law firms) worked well. One of the judges lost his connection for a few minutes, and had to re-join by phone, but otherwise the hearing proceeded pretty much as if it were in a courtroom, with submissions interrupted by occasional questions and comments from the bench. (By contrast, a court reporter I know tells me that an online hearing in the Court of Protection last week had to be paused when the judge’s dog wanted a biscuit.)

There was a bit of fussing over bundle and page numbers (even more so than usual), which was not helped by the fact that some participants were working off paper and some from the electronic version. On the other hand, viewing proceedings online has the advantage for the public that you can see the barristers’ faces, rather than the back of their heads.

The expedited online hearing was requested because the Supplementary Protection Certificate (SPC) that was the subject of the case is due to lapse on 2 April 2020 and the appellant was seeking to extend it. As the arguments had already been aired twice in lower forums, the proceedings were relatively straightforward and were completed within a day. The Court’s judgment (Genentech Inc. v The Comptroller General of Patents [2020] EWCA Civ 475) was published three working days later.

This experience shows that justice can indeed be done online, and also (as emphasised in the Practice Direction) that it can be seen to be done online.

As many of us have to adapt to using video conferences over the coming weeks, the online courts also provide some valuable lessons: if you can, set up two screens (one to see participants and one for reference materials such as documents); ensure the camera is at a good height and check you don’t have a distracting background; familiarise yourself with the controls of the system you are using so you can mute yourself or turn off your camera easily; and be patient if there are technical problems (as there inevitably will be!)

James writes the Bloomsbury IP/IT Law Briefing

Written by James Nurton

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