Contrary to some suggestions, work has not ceased in the First-tier or Upper Tribunals. Whilst the current lockdown forced a large number of hearings to be postponed, some others have been replaced by video or telephone hearings. Remote litigation has some different dynamics but it should not be seen as merely a temporary and inferior surrogate to hearings in person. Video and telephone hearings have a useful role to play in the long-term future of civil litigation (including tax disputes).
For a number of years, Her Majesty’s Courts & Tribunals Service (HMCTS) has been working on developing and expanding the use of video facilities in the justice system. And it was in tax tribunals that HMCTS first ran a small-scale pilot of 11 fully-video tribunal hearings between March and July 2018.
Since then improvements have been made and the bespoke Tax Video Platform (TVP) is based on Kinly video conference software. At the start of the lockdown TVP only permitted a total of five participants (including the judge) to join each hearing. From 11 May, TVP has been extended to eight participants. In cases with more participants, the tax tribunals have been open to using other platforms, including in particular Skype for Business (although there has been some indication that it can be less robust) or Kinly’s standard Cloud Video Platform.
HMRC v Inverclyde Property Renovation LLP and another is a recent example of a case (heard a couple of weeks ago in the UT) which appeared to operate very effectively by video. It turns out that listening to other barristers expound the finer points of tax legislation is no less enthralling by video than in person.
Video conferencing inevitably brings familiar challenges when key participants temporarily drop offline, lose audio or ominously freeze on screen. However, it is heartening to see all sides showing the flexibility and understanding to overcome minor technological challenges. And whilst hearings in person allow each side to exchange a flurry of sticky notes, messaging services (such as WhatsApp) are an excellent new alternative.
Perhaps a key sign of the growing recognition that video hearings can be an effective alternative has been the endorsement by higher court judges (see, for example, Sir Geoffrey Vos’ judgment in Teesside Gas Transportation Ltd v Cats North Sea Ltd & Ors [2020] EWCA Civ 503).
Whilst video conferencing can be more than adequate for many disputes on points of law, remote hearings involving real evidence (such as virtual site visits) or disputed witness evidence would plainly involve additional considerations. In particular, body language and demeanour can be part of the evidence which a judge uses to evaluate the honesty of witnesses.
Recognising the potential risks of assessing disputed facts by video is of course an issue which is not confined to tax disputes. In light of the increasing use of video hearings during the lockdown, the President of the Family Division of the High Court recently asked the Nuffield Family Justice Observatory (‘Nuffield FJO’) to undertake a rapid consultation on the use of remote hearings which has just been published.
Unsurprisingly, the consultation responses are equivocal. Video hearings are not necessarily inferior to a real courtroom and a video can provide a clearer view of a witness. In a case management decision released this month, a High Court judge refused to accept that video facilities were necessarily inferior at ‘getting to the truth’ (A Local Authority v Mother & Ors [2020] EWHC 1086 at paras 27–29).
However, there is also widespread recognition that some matters are unsuitable for a remote hearing, not least where an interested party is unable to participate fully. The Court of Appeal recently set aside a decision in the Family Court based on the particular circumstances (see A (Children) (Remote Hearing: Care And Placement Orders) [2020] EWCA Civ 583). Nevertheless, in doing so the court emphasised that the suitability of a matter for a video hearing is a case management issue to be evaluated on the basis of fairness and justice in each case.
Although Covid-19 has been the catalyst for change, remote litigation offers much more than a temporary stopgap. On offer is the possibility of a faster, more efficient and more convenient means of dealing with some matters. The success of full appeal hearings conducted by video might sharpen focus on when it is necessary for parties to travel to one of the UK’s many tribunal centres to attend short or uncontested case management hearings.
That is not to say that remote litigation is invariably more straightforward. Greater flexibility and cooperation between the parties is inevitably necessary. Producing electronic bundles can be a particular difficulty, especially when many government email addresses (including those of HMRC and the Tribunals Service) have strict limits on the size of emails which can be received. This is exacerbated by large parts of HMRC being unable to use alternatives like Dropbox.
However, necessity drives adaptation and despite the current lockdown both sides (taxpayers and HMRC alike) have proved adept at producing document bundles in a range of cases (big and small).
In short, one small benefit of Covid-19 appears to be a shift in culture which means that the category of cases presumed to be unsuitable for a remote hearing has shrunk.
It should be noted that the Coronavirus Act 2020 brought into force a number of amendments, including to the Tribunals Courts and Enforcement Act 2007 which has in turn led to changes to the FTT rules. In the main part, the changes are designed to facilitate remote hearings by allowing such hearings to be in public or private (as appropriate) and permitting an audio or audio-visual record to be kept by the tribunal.
However, it should also be noted that there are new criminal offences for unauthorised recording or transmission of hearings. These offences are broadly drafted and all participants of remote hearings should be aware of them and the danger of breaching them (even inadvertently).
It is not only in virtual courtrooms that technology is helping to resolve disputes. Alternative dispute resolution (ADR) is a popular alternative (or adjunct) to litigation which has for some time been using telephone conferences, typically for smaller or simpler disputes.
Unsurprisingly, Covid-19 has stalled some ADR matters where a face-to-face meeting is needed. Here too, video conferencing has helpfully eliminated the barrier to holding such meetings during the lockdown (cue the headline ‘Video killed the ADR bar’).
However, mediation sometimes depends on building rapport between opposing sides of a dispute, which can be much harder through a screen than across a table.
The development of video technology and its unremitting creep into our lives offers a viable alternative way of doing things. That is not to say that it can or should replace other means of dispute resolution in all cases.
Moreover, there is still plenty of room for improvement. Some of the areas captured by Nuffield FJO include the importance of having a clear process at the outset of a hearing covering everything from when to mute or switch off video to setting out some sort of timetable and additional time needs to be factored in to accommodate delays caused by the technology. Ideally there would be early notice of the platform to be used and an opportunity for participants to select a time in advance of the hearing for a ‘dry run’. Perhaps it would also be useful to offer a means of providing anonymous feedback, so that the tribunal can learn any lessons as quickly as possible.
Nevertheless, the progress so far is encouraging. Recognition of the potential benefits and a willingness to adapt mean that video hearings are a very worthy part of a tax tribunal’s 21st century toolkit.
Contrary to some suggestions, work has not ceased in the First-tier or Upper Tribunals. Whilst the current lockdown forced a large number of hearings to be postponed, some others have been replaced by video or telephone hearings. Remote litigation has some different dynamics but it should not be seen as merely a temporary and inferior surrogate to hearings in person. Video and telephone hearings have a useful role to play in the long-term future of civil litigation (including tax disputes).
For a number of years, Her Majesty’s Courts & Tribunals Service (HMCTS) has been working on developing and expanding the use of video facilities in the justice system. And it was in tax tribunals that HMCTS first ran a small-scale pilot of 11 fully-video tribunal hearings between March and July 2018.
Since then improvements have been made and the bespoke Tax Video Platform (TVP) is based on Kinly video conference software. At the start of the lockdown TVP only permitted a total of five participants (including the judge) to join each hearing. From 11 May, TVP has been extended to eight participants. In cases with more participants, the tax tribunals have been open to using other platforms, including in particular Skype for Business (although there has been some indication that it can be less robust) or Kinly’s standard Cloud Video Platform.
HMRC v Inverclyde Property Renovation LLP and another is a recent example of a case (heard a couple of weeks ago in the UT) which appeared to operate very effectively by video. It turns out that listening to other barristers expound the finer points of tax legislation is no less enthralling by video than in person.
Video conferencing inevitably brings familiar challenges when key participants temporarily drop offline, lose audio or ominously freeze on screen. However, it is heartening to see all sides showing the flexibility and understanding to overcome minor technological challenges. And whilst hearings in person allow each side to exchange a flurry of sticky notes, messaging services (such as WhatsApp) are an excellent new alternative.
Perhaps a key sign of the growing recognition that video hearings can be an effective alternative has been the endorsement by higher court judges (see, for example, Sir Geoffrey Vos’ judgment in Teesside Gas Transportation Ltd v Cats North Sea Ltd & Ors [2020] EWCA Civ 503).
Whilst video conferencing can be more than adequate for many disputes on points of law, remote hearings involving real evidence (such as virtual site visits) or disputed witness evidence would plainly involve additional considerations. In particular, body language and demeanour can be part of the evidence which a judge uses to evaluate the honesty of witnesses.
Recognising the potential risks of assessing disputed facts by video is of course an issue which is not confined to tax disputes. In light of the increasing use of video hearings during the lockdown, the President of the Family Division of the High Court recently asked the Nuffield Family Justice Observatory (‘Nuffield FJO’) to undertake a rapid consultation on the use of remote hearings which has just been published.
Unsurprisingly, the consultation responses are equivocal. Video hearings are not necessarily inferior to a real courtroom and a video can provide a clearer view of a witness. In a case management decision released this month, a High Court judge refused to accept that video facilities were necessarily inferior at ‘getting to the truth’ (A Local Authority v Mother & Ors [2020] EWHC 1086 at paras 27–29).
However, there is also widespread recognition that some matters are unsuitable for a remote hearing, not least where an interested party is unable to participate fully. The Court of Appeal recently set aside a decision in the Family Court based on the particular circumstances (see A (Children) (Remote Hearing: Care And Placement Orders) [2020] EWCA Civ 583). Nevertheless, in doing so the court emphasised that the suitability of a matter for a video hearing is a case management issue to be evaluated on the basis of fairness and justice in each case.
Although Covid-19 has been the catalyst for change, remote litigation offers much more than a temporary stopgap. On offer is the possibility of a faster, more efficient and more convenient means of dealing with some matters. The success of full appeal hearings conducted by video might sharpen focus on when it is necessary for parties to travel to one of the UK’s many tribunal centres to attend short or uncontested case management hearings.
That is not to say that remote litigation is invariably more straightforward. Greater flexibility and cooperation between the parties is inevitably necessary. Producing electronic bundles can be a particular difficulty, especially when many government email addresses (including those of HMRC and the Tribunals Service) have strict limits on the size of emails which can be received. This is exacerbated by large parts of HMRC being unable to use alternatives like Dropbox.
However, necessity drives adaptation and despite the current lockdown both sides (taxpayers and HMRC alike) have proved adept at producing document bundles in a range of cases (big and small).
In short, one small benefit of Covid-19 appears to be a shift in culture which means that the category of cases presumed to be unsuitable for a remote hearing has shrunk.
It should be noted that the Coronavirus Act 2020 brought into force a number of amendments, including to the Tribunals Courts and Enforcement Act 2007 which has in turn led to changes to the FTT rules. In the main part, the changes are designed to facilitate remote hearings by allowing such hearings to be in public or private (as appropriate) and permitting an audio or audio-visual record to be kept by the tribunal.
However, it should also be noted that there are new criminal offences for unauthorised recording or transmission of hearings. These offences are broadly drafted and all participants of remote hearings should be aware of them and the danger of breaching them (even inadvertently).
It is not only in virtual courtrooms that technology is helping to resolve disputes. Alternative dispute resolution (ADR) is a popular alternative (or adjunct) to litigation which has for some time been using telephone conferences, typically for smaller or simpler disputes.
Unsurprisingly, Covid-19 has stalled some ADR matters where a face-to-face meeting is needed. Here too, video conferencing has helpfully eliminated the barrier to holding such meetings during the lockdown (cue the headline ‘Video killed the ADR bar’).
However, mediation sometimes depends on building rapport between opposing sides of a dispute, which can be much harder through a screen than across a table.
The development of video technology and its unremitting creep into our lives offers a viable alternative way of doing things. That is not to say that it can or should replace other means of dispute resolution in all cases.
Moreover, there is still plenty of room for improvement. Some of the areas captured by Nuffield FJO include the importance of having a clear process at the outset of a hearing covering everything from when to mute or switch off video to setting out some sort of timetable and additional time needs to be factored in to accommodate delays caused by the technology. Ideally there would be early notice of the platform to be used and an opportunity for participants to select a time in advance of the hearing for a ‘dry run’. Perhaps it would also be useful to offer a means of providing anonymous feedback, so that the tribunal can learn any lessons as quickly as possible.
Nevertheless, the progress so far is encouraging. Recognition of the potential benefits and a willingness to adapt mean that video hearings are a very worthy part of a tax tribunal’s 21st century toolkit.
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