Clifford Chance

Best Delivery's Theodora Fajembola partners with electronic filing specialist Keith Isaacs to help legal teams get ahead of this lockdown challenge.

With a wide range of standard legal operating procedures needing to be adapted in this period of enforced remote working, the sector is having to react quickly and decisively to find a variety of solutions. Fortunately, Best Delivery's Continuous Improvement specialists are well equipped to rise to exactly this type of challenge. We spoke to Continuous Improvement Portfolio Manager Theodora Fajembola and Legal Executive Keith Isaacs about the challenge of implementing, at speed, an acceptable alternative to hard copy court bundles.

(Although the court requirements we talk about here are specific to the UK, the bundle preparation may be relevant for other jurisdictions.)

Can you explain what is a court bundle and how is it impacted by the coronavirus lockdown?

Theo: A court bundle is an essential information pack that pulls together all the necessary information and evidence relevant to the case in one hard copy bundle. A court bundle needs to be prepared and lodged with the Court in all but the smallest of hearings. Both the Court and the advocates appearing before it will work from their identical copy bundles during the hearing and the advocates will refer the Judge to the specific places within the bundles in support of their legal arguments. As such, the bundle needs to include all documents to which either party's counsel intends to refer at the hearing or during the course of trial.

Keith: While court bundles have been shared electronically between the parties of Court cases for some years, Courts still wanted hard copy bundles for the actual hearings as it made it easier, literally, to ensure that all attending parties were on the same page! If there were witnesses or experts coming to the hearing, we needed to ensure that a hard copy was available for them to refer to in the witness box.

What's been happening to court hearings since countries have been going into lockdown?

Keith: Since lockdown was initiated in the UK on Monday 16 March, the Courts have been swift to move to virtual court hearings utilising a variety of means, for example via telephone, Skype and Zoom. The English courts appear to be ahead of their Continental European counterparts in holding virtual hearings, with the first video conference hearing taking place in week 1 of lockdown and the Firm's first virtual hearing taking place on 31 March.

For now, Skype for Business is the default technology of choice for the Courts but the Courts are open to other possible platforms and will grant permission to use them if deemed more appropriate for a particular case. We are working with the Courts to ensure we are using the most fit-for-purpose applications.

Theo: Circumstances have dictated that the Courts have had to move from hard copy to electronic bundles. Detailed Instruction on bundle preparation and format are being rolled out across all jurisdictions of England and Wales. These presently appear to be fairly uniform however there are challenges in relation to size, format, means of delivery etc, and those requirements are changing rapidly and regularly. We are working with the courts to get some degree of standardisation to optimise the efficiency of the process and minimise any security risks.

Although the court requirements we talk about here are specific to the UK, the bundles management aspect will be relevant to other jurisdictions.

What is our advice to lawyers who are preparing court bundles in this new world?

Keith: Obviously it will be very difficult, not to say impossible, to produce hard copy bundles given the current restrictions and that is no longer what the Courts are expecting from us. Even though electronic filing is more efficient, we are aware that, for many lawyers, clients and courts, this is an entirely new process, so everything will take longer in the preparation stage than it would have done previously.

We need to make sure that everything is up and running before any hearing, ideally, a week or so in advance. This includes ensuring that the Judge has full access to the electronic bundle which needs to be tested via his or her clerk.

Are there any other considerations our legal teams should be aware of regarding virtual court hearings?

Keith: We're aware that Judges' computers have IT restrictions that prevent the download of third party applications. If, therefore, an alternative application to Skype for Business is proposed, the Judge will need to be supplied with full IT kit to enable access to the application. This may need to be supplied by a third party provider, which will obviously escalate costs.

One further point: Skype for Business is enabled from the inviter's end. It is the Courts that send out the hearing invite for everyone to log into. We will therefore be using the Courts' unrestricted version of Skype for Business rather than the Firm's version, which is restricted for internal use only.

What platform are we using for the electronic filing?

Theo: There are some constraints and limitations around email attachment sizes and security restrictions. For example, the Court has imposed an email submission size of 20MB. Anything larger will need to be submitted via a sharing platform. We have multiple options that cater to these constraints, such as sharing bundles electronically via HighQ Collaborate or Citrix ShareFile.

We continue to see litigation as one of the hot spots for innovation, and probably one of the areas we see the most investments into start-ups. We are exploring how some of those new technology can be applied to our Litigation and Dispute Resolution practice.