Post Pandemic Probate Litigation
The future Conduct of Hearings
With lockdown it became clear that Courts would have to operate remotely. Hearings by Microsoft Teams and electronic bundles became the new normal in the Business and Property Courts. An astonishing amount of business was conducted without too much difficulty or too much footfall on the HMCTS Estate. Without the pandemic this enforced experiment in remote litigation might never have occurred, but the empirical evidence gathered from it is invaluable. The overriding objective of the CPR is to enable the Courts to deal with cases justly and at proportionate expense including by ensuring, so far as possible, parties are on an equal footing, are fully able to participate and that witnesses are enabled to give their best evidence, while taking account of proportionality, cost and the allocation of the court’s resources. Courts may now make decisions about the conduct of future hearings in accordance with the overriding objective with knowledge of the possibilities, but also the limitations, of litigation conducted at a distance.
The manner in which any particular hearing is to be conducted is a matter of case management for the Judge who is to hear it; the touchstone is fairness.
It seems likely that default settings for probate and other claims in the Business and Property Courts in a post-pandemic future will be:
(i) short applications and case management hearings will be remote;
(ii) longer applications, including trials, will be attended personally by the Judge and advocates, but some remote participation may be enabled; and
(iii) witnesses at trials will be generally expected to attend in person.
For short procedural matters it is hard to justify the cost of several parties and lawyers travelling to Court, when all could convene by Teams from their own homes or offices.
Conducting litigation via computer screen has generally been found to be more tiring than conducting it face to face. I anticipate Judges and advocates will favour the listing of longer matters in person, if otherwise proportionate. However, there may be considerable convenience in facilitating hybrid hearings so that it is not necessary for all participants to travel to Court.
Witness evidence at trial is fundamental to our justice system and to the Court’s function in determining disputed facts. Lieven J identified in A Local Authority v A Mother  EWHC 1086 (Fam) that there is presently no research evidence whether a witness in court is more likely to tell the truth than one giving evidence remotely and it seems likely it will take time for such evidence to emerge. In British University in Dubai v Ebrahimi  EWHC 757 HHJ Davis White QC had his task in deciding a probate claim made simpler when one of the claimed attesting witnesses said from his remote location that the meeting at which the will was said to have been witnessed had simply not taken place. The Judge observed that the fact that the evidence was given remotely did not prevent the witness feeling that he must tell the truth and wondered whether, in fact, it might be easier to tell the truth when not in the room with other parties.
If there is a dispute about whether a particular witness should give live evidence at trial it seems likely it will be for the party arguing for non-attendance to make out their case.
How to make a remote or hybrid hearings effective, fair and possible
Whatever the nature of the hearing, represented parties need to be able to produce electronic hearing bundles if the Court requests them. Bundle preparation should follow general Court Guidance and any specific directions in the case. Bundles should be subject to OCR, the pagination should be computer generated and the significant sections or documents bookmarked with page numbering.
It is vital that all those with a participatory role in a remote hearing have access to the necessary technology. Does the litigant in person have a computer and do they have the software to use an electronic bundle? The elderly witness’s carer can operate Teams but has a paper bundle in legible font been supplied to the witness and did anyone check the care home has the relevant Holy Book? Andrew Baker J in Navigator Equities v Deripaska  EWHC 1798 made clear that arrangements for the location of any witness giving evidence remotely (including the legality of giving evidence from another jurisdiction) should be discussed between the parties and approved by the Court at a CCMC or PTR.
(iii) Remote Hearings Generally
In Gubarev and another v Orbis Business Intelligence Ltd  EWHC 2167 the Divisional Court made clear that, however a hearing is conducted, formalities must be observed and Court Orders about its transmission, in particular abroad, must be obeyed.
Remote and hybrid hearings will be permanent features of the future litigation landscape.