I originally wrote this article in May 2020 which I posted on LinkedIn where I was instructed in the first ever Zoom trial in the Technology and Construction Court (TCC). It is interesting to see how it has aged.

In May 2020, the first fully remote trial in the TCC commenced between the owners of a large property on the outskirts of London and their local council. The case principally concerned the extent to which the council were liable for a leaking pipe beneath their home, the resulting damage, and whether or not repair or rebuilding of the house was the most appropriate remedy.

The origins of the case date back to 2010 when the first in a series of floods occurred. Unfortunately for the owners, flooding became a regular occurrence from 2014 and they were forced to decant from their home later that year and move into ‘temporary’ rented accommodation. They never thought this 'temporary' decant would last for nearly six years and would culminate in a TCC trial. To add a further twist in the road, along came covid.

I was instructed as quantum expert on behalf of the homeowners in 2019 by Bill Barton at Barton Legal who by this time, was working with leading construction silk Paul Darling KC (RIP) and leading planning junior James Burton from 39 Essex Chambers. Despite the initial expectation of a settlement, the matter progressed to trial.

When covid raised its head in the UK in Q1 of 2020, there seemed a significant risk that the trial would be postponed. However, the judge in the matter (Justice Jefford) decided at the Pre Trial Review that the trial would proceed remotely and was scheduled for a nine day hearing in May 2020 via Zoom. It would not be fair to the Claimants to wit any longer to resolve this issue.

The good news is that after cross examination of the factual witnesses in the first week of trial, the parties came to an amicable settlement of more than £3m and there was therefore no need to cross examine myself or my opposite number. On a personal note it was somewhat disappointing as it was one of the rare occasions that I was actually looking forward to cross examination. However, given the settlement reached, it was plainly the correct decision.

As an expert who spends much less time in court than lawyers, I was initially sceptical about how the running of case would go given all the unknowns. However, I am pleased to report however that the trial (for the period it ran), proceeded smoothly with only a few minor technical issues from time to time but these did not appear to be anything that might not occur in person in any event (frozen screens, delays in finding files etc.). Counsel for the parties were able to make their points, the witnesses were able to provide their responses and the Judge was able to make hers; which as a passive observer for the most part, were all made clearly and concisely with little ambiguity.

Of great help to the court was the assistance of a Zoom co-ordinator who controlled which attendees could be seen and heard whilst all interested parties were able to observe proceedings, without any unfortunate interruptions. I was an expert in a trial in the TCC last year where a number of observers in the court were talking at various points which I did notice became a bit of a distraction for the rest of us, especially the barristers and judge.

The court also made use of hard copy bundles. In the TCC case last year I noticed that all bundles were electronically projected whilst a hard copy of my report was made available to me in the witness box during cross examination. In this case, we all had hard copy trial bundles sent to our homes in advance, but Zoom’s functionality allowed for the sharing of relevant files electronically on screen when required. Similarly, this generally worked well and meant that those of us in attendance could clearly see and hear what was being discussed. Indeed, when the factual witnesses were being cross examined, I was able to observe and make notes on points related to my area from the comfort of my own home office which was much easier to do than in court.

The other benefit I noted was that I could listen to the evidence being given as it happened rather than having to read through transcripts in the evenings on the days that I would not have attended in person. This gave both parties’ legal teams the benefit of real time input from other factual witnesses and experts as the need arose. Contrasting this with reading transcripts on the Tube after work last summer, I feel that this was a big improvement from the perspective of an expert witness.

In one or two instances, when addressing Counsel on points concerning one of the factual witnesses, I noted that the Judge made reference to the lack of body language observations she took for granted in the more usual court surroundings, but apart from that and the odd temporary IT glitch, nothing struck me as materially affecting the proceedings.

Whilst I still prefer hearings or meeting people in person, I have definitely opened up to the potential for remote hearings in the future where the circumstances suit. In a LMAA arbitration hearing in London where I was cross examined in 2018, my client (the claimant) was a Chinese based shipyard with the buyer from Malaysia (the respondent). The technical and delay experts on our side were based in Shanghai and Dubai respectively but had travelled to London for the week of the hearing. The factual witnesses had all travelled from China and Malaysia. One of the arbitrators had travelled from Hong Kong.

Reflecting back now, I wonder whether some of that substantial travel time and cost could have been avoided. I think the answer to my rhetorical question is probably yes, whereas if you had asked me a month ago, I would probably have preferred the attendance of witnesses in person. The Chinese witnesses were giving evidence via translators so that would have probably been a factor, whereas the Malaysians’ evidence was given in English. However, I now believe that some of the significant costs incurred in the proceedings could have been reduced had some witnesses given their evidence remotely which I don’t think would have materially affected how it was received by the tribunal.

Moving away from court proceedings, I was an observer of a recent webinar on construction insolvency and adjudication. In it, one of the speakers suggested that he could foresee a notable rise in the use of remote hearings in adjudications as a result of the restrictions we are presently living under. Having been part of this trial (albeit for only half of the planned nine days) and being involved in many adjudications, I would now have to agree with his submission.

As we never got to the expert evidence, I am still intrigued as to how that would have worked in practice; similar to the factual witnesses I suspect. Whilst settling was obviously the best result for all concerned, I was personally looking forward to the experience. Who knows though, maybe I’ll get another chance to give evidence by video link in the not too distant future?