Thursday, June 18th, 2020
The first lockdown proof in the Court of Session: some thoughts …
Andrew Smith QC
Craig Murray, Advocate
On 166h to 18th June 2020, a Commercial proof took place before Lord Clark. It was the first Court of Session proof using Webex (the preferred system for virtual proofs). This short article is designed simply to provide some reflections on how the proof was handled, the problems that arose, the solutions adopted and contains some practical suggestions for improvement. It is emphasised that all suggestions are positive and constructive. The proof ran extremely smoothly, thanks to a combination of good preparation by both sets of solicitors, careful case management by the proof judge, and excellent hosting by His Lordship’s clerk, Louise Cranston.
It was the first proof to be heard in the Court of Session since the beginning of lockdown on 23rd March 2020.
The Facts of the Case: what was for proof?
The pursuer is a company which operates a strawberry farm near Arbroath. It contends that polythene sheeting bought from the defender, used to provide ground cover, was defective and allowed excessive weed growth. The pursuer avers that caused the yield of the strawberry plants to be significantly diminished over the course of their 3 to 4-year lifespan
The preliminary proof before Lord Clark was on the question of whether the defender’s standard conditions were incorporated into the parties’ contract. The defender contended that a standard condition giving the English courts exclusive jurisdiction applied to the contract.
It is fair to say that the proof was very much “document lite” which assisted with the progress of the case. Further, the evidence from the witnesses was in short compass, which again allowed a focus on the issues without over labouring any factual matters.
Advance Preparation for the Proof
To ensure that the witnesses were fully briefed in advance, to allow them to consider productions, a “pack” was sent to them. That sealed pack contained their own witness statements; and copies of core productions. The productions were individually numbered on the pages and less than 100 pages were produced.
In a traditional proof, of course there are a number of things that happen without being raised with the court in any detailed way.
(i) The witness usually is asked by the macer in advance, and often in the witness room, if they wish to swear or affirm.
(ii) Witnesses can be marshalled not to look at documents other than those that they are shown.
(iii) There is little chance of interruption of their evidence by third parties.
(iv) Witnesses can be observed, to avoid them being tutored by third parties in what to say.
(iv) Witnesses will not generally be able to remove documents from court that may give rise to GDPR issues.
(v) Witnesses can be asked to leave court if an objection has to be heard in their absence.
All of these were addressed in case management.
Evidence was led from 8 witnesses over Webex, each joining from their homes or places of work. After administering the oath or affirmation, Lord Clark gave detailed directions to each witness on the witness’ responsibilities and how the hearing would be conducted by Webex.
In advance of the proof, the witnesses were asked by the clerk to indicate their oath preference. The Judge was advised in advance, and there was no difficulty about their request being granted.
The witness was given guidance about the remaining matters above and given the following instructions:
Do not open the pack of documents sent by the solicitors unless and until invited to do so.
Ensure that you are in a quiet space with no one else in the room.
Make sure your mobile phone is off or out of reach.
Confirm that no one is providing you with any assistance in the evidence being elicited.
If an objection is taken you will be placed into a “training session” where you should wait until the issue has been dealt with.
Once your evidence is concluded the pack of documents should be destroyed or returned to the solicitors, but certainly not retained.
In addition, instructing solicitors took the opportunity to remind the witnesses they should not record the proceedings as it would be a contempt of court to do so.
The system employed was to have a “training session” log in, which was limited to the core participants (being the clerk, counsel and the judge). Once the clerk rendered the proceedings “live”, observers were able to see all those present and the hearing formally commenced.
Some witnesses, and myself included, had difficulties with logging in. It seems that Google Chrome is the best platform on a Mac to use, but it is sensible to have more than one device if possible. I found Webex to be rather temperamental, working fine one day then the problems arising the next for no apparent reason. It is a good idea to log in early – maybe up to fifteen minutes early – to make sure that all is working well.
Note that when passing between “live” and “training” the microphone goes to mute. You have to unmute it even if live before you were passed over.
It is important to mute when not speaking. Otherwise page turning will render your image active and be distracting.
Some witnesses had a powerful echo. This appears to be because the computer speakers are turned up high. It may be specific to the design of some computers, and it may be cured by the witness being told to have some headphones handy to use if that occurs.
All witnesses found that the hard copy documents were easy to access, but the low volume of documents might have made this easy. Junior counsel was able to screen share, having been given presenter privileges by the clerk. In large volume production cases, this will certainly be preferable. It is also suggested that an entire “Proof Bundle” containing all relevant documents (pleadings, witness statements, etc.) should be prepared. Viewing documents on screen sharing will avoid the GDPR issues outlined above.
This is, of course, a difficult one to resolve. The Scottish Courts and Tribunal Service IT department has suggested that those affected should make sure that others in their household are not using broadband when the case is ongoing.
The courts have encouraged a trial run prior to the actual hearing, both with counsel and separately with witnesses. This should iron out most problems in advance and ensure that witnesses are comfortable with the system.
It is clear that while there could be improvements to what took place, generally this method of proceedings was a success. The goodwill of all counsel, the judge, his clerk and the solicitors as well as the enthusiasm of the witnesses to cooperate all contributed to this being a positive experience.
No doubt further improvements can be made in the future, but advance planning and patience both contributed to this making the best of a difficult time.
The pursuer was represented by David Massaro of Axiom Advocates. The defender was represented by Andrew Smith QC and Craig Murray, both of Compass Chambers.
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