By now, the effects of Covid-19 on the UK construction industry are pretty clear: the latest statistics show that output dropped by 35% in the second quarter of the year alone. Time will tell how the Covid-induced recession, plus the withdrawal of the government’s furlough scheme, will shape the sector, but legal disputes are expected to increase as struggling companies attempt to mitigate losses amid the disruption caused by the pandemic.
If one thing is clear from this brief picture, it is that reducing the costs and speeding up the time frame of construction disputes will likely be a significant factor in the survival of companies that are already struggling in the current climate, since a single dispute may cost millions and most usually take a minimum of 10 months to resolve.
One way to speed things up might be to share the lessons learned by the legal profession during the pandemic and adopt new ways of working. For judges, lawyers, and their clients, this has meant moving trials from the courtroom to cloud-based communications platforms such as Zoom.
The first entirely remote trial in the Technology & Construction Court (TCC) concerned the repeated flooding of a family home and was brought against Barnet Council. It resulted in the council agreeing to settle the case with a payment of over £3m.
This trial took place in May 2020 and lasted only five days. But this was enough to show the incredible potential of remote hearings, with reductions in travel time on the one hand and laser-like focus on the most important aspects of hearings – evidence and the law, instead of time-consuming courtroom theatrics – on the other. The trial had originally been scheduled to last nine days.
Other benefits included the general convenience factor of being able to log on to a trial from your office or home, the lack of distractions, and being able to see documents and participants more easily without having to glance up from your own documents or across a sizeable room.
Of course, as with anything in business, there were some hurdles to be crossed before the full effect of these benefits could be felt. At the time of the first TCC trial, for example, there were still significant concerns about “zoombombing” – the intrusion into a Zoom session by malicious hackers or trolls – and more generally about security surrounding any remote hearing.
We quickly learned that these can all be addressed with thorough preparation and by considering all the ways in which a person might try to disrupt the hearing.
Preparation was key to avoiding any of the other potential drawbacks of remote trials, such as poor internet connection or distracting backgrounds. The trial of Barnet Council was attended by up to 40 people, including journalists and members of the public, without any problems.
On balance, any likely problems are minor compared to the potential gains made in efficiency and cost – especially now that awareness of video call etiquette has become almost universal.
Common sense applies here: just think about what you don’t like when you have a video call with other people – bright lights; background noise; distracting backgrounds – and avoid them. Make sure you have two screens, so that you can see each person speaking alongside any relevant documents being discussed, and plenty of room for files and documents.
When it comes to hearings with expert witnesses, which are common in construction disputes, the vast majority of these experts will already be used to holding video conferences with counsel, solicitors and clients. A virtual hearing is therefore just the next logical step in the process, though experts will need to be guided on the parameters of the discussions and reminded to not go ‘off-piste’.
Remote hearings in arbitral disputes are already common, especially in international contracts where parties may be based in several different countries and time zones. These virtual hearing are almost certainly going to become the norm.
The groundwork is already set for English courts to use their new experience of remote trials as a major selling point on the international stage.
Covid-19 has demonstrated that not only do we have a robust and predictable system of law, but that British courts are able to function at nearly full capacity even during a pandemic. In light of Brexit, this will hopefully restore international confidence in the UK and encourage companies from abroad to choose England, once again, as their preferred jurisdiction.
It’s important that firms caught up in litigation feel that they have been allowed a real and proper opportunity to present their case and interrogate the case of the other side. At the same time, they will be keen to reduce their spend on lawyers and experts, minimise travel and waiting time, avoid cancellation or adjournments and get as accurate an estimate of costs at the outset of the case as possible.
Remote hearings can help litigants and their lawyers, wherever they are in the world, do exactly that.
Whether such hearings become popular after they stop being strictly necessary, however, depends mostly on the will of the those in the sector.