London's Commercial Court has been celebrating its 125th anniversary since March this year. As part of this year-long celebration, the Commercial Court organized a webinar, Year 126 and Onwards in association with London International Disputes Week and Opus 2. The 3 hours long webinar, held in 3 live sessions, saw eminent jurists, arbitrators, attorneys, and academicians joining heads on recent important developments in commercial arbitration. Team Webnyay attended this session and has summarised the discussion and key takeaways below:
New ways of conducting arbitration proceeding in light of the pandemic was a subject of great scrutiny in all the sessions. An interesting highlight of the event was the live poll being conducted on specific questions related to commercial arbitrations. All the participants were free to vote on these questions, giving a glimpse into the public opinion.
The webinar was kickstarted by introductory remarks from Lord Justice Flaux, Supervising Lord Justice of the Commercial Court. Explaining how in the past, adjudication of commercial cases by non-specialized judges used to be neither expedient nor effective, Lord Flaux went into great detail on the establishment of the Commercial Court: how Bank of Australasia acted as a catalyst in this change, the practice of commercial list, changes in disclosure norms, time-bound trials. Lord Flaux took the participants on a journey from long, complicated commercial cases, replete with cross-examinations and witness statements, to a more streamlined and efficient trial process. After giving a brief vista into the coming sessions by sharing his own experiences of virtual hearings and taking witness statements, he gave the podium to Hon. Mrs. Justice Cockerill to conduct the first session.
"In the past, adjudication of commercial cases by non-specialised judges used to be neither expedient nor effective."
First Session: Virtual Hearings
The first session was on remote hearing, moderated by Justice Cockerill, who was joined by Mr. Richard Little, Mr. Joe Smouha QC, and Professor van Haersolte. Justice Cockerill presented questions for discussion to the panel, including questions asked by the audience through the live chatroom.
- The first point of discussion was remotely held Case Management Hearings (CMH) and whether continuing with remote CMH even after the pandemic restrictions subside would be wise. We saw mixed opinions from the panelists, with Professor van Haersolte viewing the high demand for remote hearings as a temporary response to the pandemic situation, which will decline once the situation normalizes. She cited better client engagement in in-person hearings as well as the importance of in-person hearings in acquainting the tribunal members with each other. Although, according to the other two panelists, remote hearings allow greater engagement since even geographically distant clients can participate in the hearing. They appreciated the spontaneity and efficiency of virtual hearings. All three agreed that the absence of a 360-degree perspective is a significant disadvantage from the point of view of judgecraft.
- On the question of the client's interaction with the court, Mr. Smouha quipped that remote hearings give less time for interaction to counsels, which is a good thing. However, less time for judicial interaction during these hearings is not a good sign from the point of view of clients. Panelists expressed concern over long virtual hearings, to which Justice Cockerill pointed the gradual shortening of hearings. She contemplated the reasons behind this and if shorter hearings are preferable to the clients, considering that the judges may seem too passive in such hearings. Professor van Haersolte agreed, saying that remote hearings have been made efficient and time-bound by filtering questions through the Chair and using "continental techniques" like mid-stream hearing. However, substantive engagement has been lost in the process.
- Another oft-neglected question was the effect of remote hearings on junior lawyers undergoing training. Everyone was in agreement that virtual hearing cannot substitute in-person courtroom experience. Besides, in-person hearings allow junior lawyers to interact with their seniors in a more informal setting and freely participate in discussions. But Mr. Little was of the opinion that this was not a case of lawyers losing touch with legal learning but rather gaining new skills in legal technology.
"Virtual break-out rooms for the legal team is an effective way-around for the problem of developing team dynamic, during virtual/hybrid hearings."
- The panel discussed hybrid hearings: where some parts of the hearing are heard remotely while other parts are heard in-person. Mr. Smouha highlighted 3 key differences between fully-remote and hybrid hearings: physical interaction of court and witness; development of advocacy skills; and team dynamic between lawyers. He continued that taking witness evidence in court while conducting other aspects of the trial remotely can be a good way to conduct hybrid hearings. Virtual break-out rooms for the legal team is an effective way-around for the problem of developing team dynamic. Professor van Haersolte pointed out that hybrid hearings are not a new phenomenon, since witnesses have been remotely heard for a long time. But Tribunals should ensure that the sanctity of the judicial process is preserved and witnesses are not being influenced during remote hearings. Professional hearing centers have come up for this very reason and can be of great help in hybrid hearings.
"A case whose trial would've ordinarily taken a year, was virtually concluded in 52 days."
The session ended with an address by Miss Leigh-Ann Mulcahy of the Admiralty Court. She shared her experience of the unprecedented virtual hearing of FCA's Test Case. She said that this was a case that ordinarily would have taken a year but was virtually concluded in 52 days.
Second Session: Disclosure Pilot Scheme
The next session, on the New Disclosure Pilot Scheme for reforming the disclosure regime in business and property cases, was moderated by Mr. Ed Crosse of Simmons & Simmons. The main agenda for discussion was how well the scheme was operating on the ground. Mr. Crosse was joined by Professor Rachael Mulheron, who was on the Review Committee of the Disclosure Pilot, Miss Natalie Osafu, Miss Sonia Tolaney, and Hon. Mr. Justice Robin Knowles.
The session was initiated by Mr. Crosse sharing insights into the disclosure regime. Disclosure regimes are of greater consequence in common law jurisdictions due to the weightage put on documentary evidence as opposed to civil law jurisdictions. A significant challenge of disclosure is data proliferation and ensuring the proportionate use of data. He relayed how a Working Group was formed in 2016 to restructure the then-existing disclosure regime owing to the consistent client dissatisfaction against it.
"Courts were already moving away from standard disclosure even before the pilot was introduced. The recent practice has been disclosure models based on party consent or judicial order."
- The panel began the session with a discussion on Disclosure Review Document (DRD). This helps parties agree on the scope and mode of the disclosure. DRD is a response to the recent impetus to move away from standard disclosure. According to Professor Mulheron, feedback from clients and law firms depict great satisfaction towards initial disclosure, especially the client's control over the threshold of the disclosure. However, concerns have been expressed with respect to the list of issues for disclosure. Issues for disclosure and issues for trial are not naturally distinguishable, especially in the early stages of the trial. Clients feel that the obligation on former employees to preserve old documents can be quite onerous. Regarding standard disclosure, she clarified that courts were already moving away from standard disclosure even before the pilot was introduced. The recent practice has been disclosure models based on party consent or judicial order. This has led to the growing popularity of specific request disclosures, sometimes in unsuitable situations as well.
- The session moved to a more detailed discourse on the list of issues for disclosure. Miss Osafu said that since this is a very new practice, there is a lot of uncertainty around the drafting of the lists. It can be difficult for the parties to agree upon issues when they are too tactical. Moreover, parties tend to make too long lists filled with irrelevant redundant issues. This eats up the Court's time without adding any value to the trial. Miss Tolaney added that allowing clients to choose one of the disclosure models and then simply producing documents according to the model chosen, without going into negotiations on specific disclosures, can help save the court's time. She warned that issues for disclosure could elongate and complicate multi-party cases but are quite useful in simpler cases. Contrary to his two co-panelists, Justice Knowles was of the opinion that "issues for disclosure" was a step in the right direction. This gives control to the people who undergo disclosure. He emphasized that courts and parties need to be flexible when it comes to disclosure. For instance, issues for disclosure can be borrowed from issues for trial.
"Model C disclosure offers versatility to the parties."
- Mr. Crosse asked the panel their opinion on Disclosure Model C, which allows the parties to make specific requests for specific documents or narrow categories of documents. According to Miss Osafu, specific requests can be useful when there is a clear articulation of requested documents. However, it loses its efficacy when too many specific requests are made. In such cases, parties should prefer going for Model D disclosure i.e. production of documents that are likely to support/adversely affect a party's case. Miss Tolaney also elaborated on the challenges posed by specific requests in complex multi-party cases. Time lag and ensuing mismatch between updated specific requests and the other parties' response to the request is one such very practical challenge. Justice Knowles also advised the use of Model C only after careful discussion. However, he also pointed out that there is nothing wrong with numerous specific requests in respect of expert evidence. Model C offers versatility to parties.
- The next point of discussion was with respect to the disclosure of data by the parties under section 2 of DRD. There is uncertainty as to the extent of disclosure required under DRD. Miss Osafu proposed simplification and consolidation of DRD, making it more user-friendly.
Third Session: Witness Statement
The last session was held on Witness Statement, moderated by Hon. Mr. Justice Andrew Baker. Justice Baker and two of the panelists, Mr. Chris Bushell and Mr. Richard Blann, were part of the Witness Evidence Working Group which introduced certain modifications in the existing witness evidence procedure. Now, witness statement, a written factual statement submitted by the witness, will substitute witness examination-in-chief. The panelists deliberated on the new modifications as well as some proposals for further modifications.
"Over-preparation can turn witness statements into a summary of constructed facts rather than a summary of witness' recollection"
- Much of the session was dominated by the malleability of a witness' memory and how it may make witness evidence unreliable or incomplete. This is especially so in commercial cases that involve a lot of minute details. To what extent should witnesses be allowed to refer documents while preparing witness statements? One of the concerns of the panelists was that over-preparation turns witness statements into a summary of constructed facts rather than a summary of witness' recollection. Justice Baker asked whether witness examination-in-chief could be a substitute for witness statements. This suggestion was met with unanimous disagreement from the panelists. Miss Charlotte Tan said that the witness statement does not rely too much on witness' memory and hence is an advantage in complex cases. From the legal team's point of view, it gives an opportunity for better preparation by providing advance notice of what is to be expected in the case. Oral examination-in-chief can prolong and complicate the case. However, Mr. Blann interjected that witness statements can be expansive as well. But he agreed that witness statements are more efficient.
- Justice Baker asked the panelists how they deal with overzealous witnesses who insist on controlling the case's direction. On the other hand, how do they reassure passive witnesses who are not forthcoming with information while preparing witness statements? Mr. Bushell shared that in his experience overzealous witnesses are also a party in the case. Witnesses generally become passive when they are required to recollect very old facts. In such cases, allowing witnesses to read through older documents can be quite helpful. The best practices outlined by the Witness Evidence Working Group in its final report are also helpful in dealing with such witnesses.
"Whether there should be any sanction against witnesses when the witness statement has irrelevant and inappropriate content?"
- Lastly, the panel discussed how to strike a balance between total non-disclosure and complete disclosure of documents for assisting the witness while preparing the witness statement. Justice Baker expressed his concern that when witness statements are drafted after thorough reference to documents, judges tend to place less weight on the witness evidence. On the contrary, complete non-reference may make the witness statement unreliable. According to Mr. Bushell, courts should not interfere with what documents should be shown to the witness before drafting witness statements. Going on a tangent, Justice Baker also pointed out how witness statements sometimes have irrelevant and inappropriate content. He asked whether there should be any sanction against the witness, for instance striking down the witness statement. However, the panel agreed that this would only further prolong the trial since the court will have to hear another set of arguments for deciding if the witness statement should be struck down.
Justice Flaux and Justice Cockerill delivered the concluding remarks with acknowledgments to all the panelists, moderators, and the audience. The webinar concluded with an announcement of the coming webinar on state immunity and constructive contracts on October 7th.