Clare Reffin recently sat as an Examiner under the Evidence (Proceedings in Other Jurisdictions) Act 1975 for a fully remote Examination.
As so often happens, an individual working in London was an essential witness for US proceedings. Before the lockdown, the case had proceeded in typical fashion. An order had been obtained through a paper application to the Senior Master, and subsequently the witness had engaged a solicitor, who negotiated amendments to the scope of the document production and of oral questioning with the applicants’ solicitor. Agreement was reached, just after the lockdown, on those matters, and on conducting the Examination remotely. The parties could not get their consent order sealed at that stage, but decided to proceed as if it had been.
Each participant was alone in his or her home, 11 people in all: two US lawyers plus one English solicitor for the US Defendants/ applicants; one US lawyer for the US Plaintiffs; the witness; the witness’s English solicitor; the Examiner; the “court reporter” stenographer, a videographer, and a back-up videographer (all three of them in the US, engaged by a US deposition services provider). The conferencing technology was based on Zoom.
US based providers have experience with domestic depositions at which some participants attend remotely, and have worked quickly to provide fully remote services. They are naturally not familiar with the slightly different procedure for an Examination under the Act and CPR 34.
The hearing went smoothly. A good deal of preparation is required. This includes distribution of a well-assembled bundle of documents from which exhibits will be selected; the witness had a paper file, as well as pdfs, which was helpful. As for any remote hearing, participants should optimise their technology. An Ethernet connection, or connections, and high quality headset seem to work best, and multiple monitor screens are a distinct advantage. A practice session, or technical rehearsal, in advance is essential. After that session, Clare issued short written directions, which were followed at the hearing.
Queen’s Bench Masters are sitting, and one may expect that they will be willing to deal with applications under the Act, at any rate if the hearing for which the evidence is needed has a fixed date or window which is approaching. Judging by this early experience, it should be practicable to obtain evidence for US courts despite the present challenging circumstances.