09 06 2020 Insights Litigation & Dispute Resolution

Litigation in Lockdown

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“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened: to the straight-out lie, the simple truth.

- Anthony Kennedy, Associate Justice of the Supreme Court of the United States

And so it is June 4th 2020. The day has arrived. My first remote hearing in litigation lockdown. It happens to be in front of (virtually) the Chief Justice and four of his eminent colleagues from the Supreme Court Bench.

Pause for breath, thoughts racing – has to be easier than a physical hearing in that prestigious court right?

What has brought me here and by here I mean my dining room? Today marks the final chapter in a lengthy piece of litigation whereby a prisoner sought vindication of his constitutional rights and the State (my client) sought to explain why the lack of in-cell sanitation did not amount to a constitutional breach of those rights.

The Judge at first instance decided the Plaintiff prisoner’s right to privacy had been breached. However, the Trial Judge refused to award damages (and costs) in circumstances where the Plaintiff had lied about a good deal during the thirty day trial.

On appeal (by the Plaintiff) to the Supreme Court the Plaintiff’s breach of privacy finding was endorsed and somewhat expanded into a category breach under Article 40.3 of the Constitution. The Plaintiff was awarded compensation. The issue of costs was left over to be dealt with another day and that day was today….

The Plaintiff/Appellant’s legal team accepted some mendacity on behalf of their client for which they suggested four days’ costs could be deducted from the thirty day trial. The State Defendants/Respondents argued that applying a “taxonomy of untruths” analysis to the Plaintiff’s behaviour at first instance was erroneous in any debate about costs. The State argued for a no costs order in the High Court given the “breath, scope and viciousness of the lies” told by the Plaintiff. The State further argued that if the Court was so minded to award percentage costs that same be viewed through the prism of the Veolia principles laid down by Mr. Justice Clarke as he then was in the case of the same name. Veolia allows for the appropriate apportionment of costs in circumstances where the trial has been significantly lengthened by the raising of unmeritorious issues.

  • Judgement is now awaited. I learned the following from my first venture into this Covid litigation landscape;
  • Virtual hearings are as involved and intense as the live show if not more so;
  • Preparation is key – virtual court hearings require working out in advance how you will access your documents/pleadings/authorities which in lockdown potentially means no physical copies of these documents to thumb through and follow as they are opened to the Court. More than one screen required for this purpose.
  • Technical knowledge of your online platform is essential and a dry run (preferably with your IT team) is useful and helps calm the nerves.
  • Familiarity with all the nuanced Rules and Practice Directions that have arrived in our lives with the virus is a must. The following are a few of the more critical requirements contained in the Court’s own Guidance Note;
    • Notify the Court by 4.30pm the previous day of those attending Court on your side;
    • Identify the names of those presenting arguments for your side;
    • Complete electronic filing of agreed authorities and books that will actually be opened to the court;
    • By 9.15am on the morning of the hearing file marked up passages of the above documents that counsel intend to specifically refer to (by 9.15am this morning I was on coffee number three).
    • Seek permission for anyone in your team who wishes to attend Court but is not a legal practitioner i.e. your client;
    • Undertakings to be sought and given that the Court protocol will be complied with at all times during the hearing.
    • Set up a WhatsApp Group to communicate with your counsel (naming the group is an interesting exercise!).

What is not covered in the Guidance is the specific requests from the Judge(s) via the Supreme Court Office for documents that they wish to access outside of the filed books which during lockdown is a challenge (no amount of coffee can help with this.)

All told I survived. Sequential lists of tasks are key that can be box ticked as you achieve each one. Maintain calm and stick a post it note to your computer to remind yourself to switch off your camera and microphone once you connect to the Court.

Let’s hope the “simple truth” will out and the bill will be manageable.

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