Fundamental Dishonesty and Trials by Remote Hearing 

Due to the Covid pandemic, most civil and personal injury trials have been generally vacated since about 23 March 2020. The parties to litigation have been invited to express whether a forthcoming trial is suitable for a remote hearing (i.e. a trial venue by electronic means, rather than in person in a Court building). The prospect of Fundamental Dishonesty arising during the hearing, whether expressly pleaded or as a likelihood, has been often suggested by the parties and some courts, as reason that might render a trial by remote hearing to be unsuitable. As the Covid disruption to Court listing persisted, the prospect of ongoing adjournments and resulting backlogs, appear to have caused a renewed impetus to proceed with trials by remote hearing, even where Fundamental Dishonesty issues may arise. Typical Covid Court directions in the run up to trial, now demonstrate that the Courts will take the views of the parties into account, but it is the Court’s decision.  

In B v An Insurer Manchester County Court (by remote hearing) on 12.6.20 Roger André of Park Square Barristers, Leeds represented the defendant insurer in what is thought to be one of, if not the first, findings in a Fast Track remote trial of Fundamental Dishonesty against the claim under s.57 Criminal Justice & Courts Act 2015. In this trial, Roger André advocated via use of  internet and technology, located in a conference room in Park Square Barristers, Leeds; whilst the trial Judge, His Honour Judge Sephton QC; Claimant Counsel from London Chambers and the Claimant were each located in different locations.  On this occasion, Microsoft Teams was used as the meeting platform. This remote hearing lasted a full day. 

In S v An Insurer, Middlesbrough County Court sitting at Teesside Combined Court Centre (by remote hearing) on 17.6.20, Roger André represented the Defendant insurer and secured by consent, an hour and half into cross examination of the Claimant, a dismissal of a Fast Track personal injury claim in a remote trial. The trial Judge, His Honour Judge Mark Gargan, was located in Teesside Combined Court Centre; Roger André was located in Park Square Barristers Chambers, Leeds; whilst Claimant Counsel; the Claimant and Defendant policyholder where each in different locations. On this occasion, the Court Video Platform was used as the meeting platform. This remote hearing lasted nearly a day. 

There remain fact-sensitive issues which may render a remote trial unsuitable, for example vulnerable witnesses; need for translators; litigants in person; lack of technology or suitable broadband/phone reception and complexity. It is also true to say that in both the above hearings, there were initial delays in attempts to get up and running, due to connectivity and sound issues. We persisted with determination and completed the listed hearings. 

We at Park Square Barristers, have the equipment, knowledge and skills to deal with advances in technology.  

Roger André

22nd June 2020

Contact Roger’s clerks

Francine Kirk on 0113 202 8605