Are benefits to be included in the claim for a grant?

The courts are seeking to adapt to our new circumstances and have urgently been looking to introduce new ways of working. The courts have been testing out different ways of holding court hearings. The advice is changing almost daily and some courts have been developing local practices. Going forward the court, the parties and their representatives will need to be more proactive about all forthcoming hearings.

Everyone involved in the case is to consider as far ahead as possible how future hearings should best be undertaken and work collaboratively. It will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely. Some witness cases will also be suitable for remote hearings. The parties just need to ensure that everyone involved can use the technology suggested.

The courts have been looking at and held remote hearings using, non-exhaustively, BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. Bundles for the hearing will be prepared and circulated electronically.

If the hearing cannot be held remotely because the parties do not have the requisite technology or the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time, then it may be that the case will need to be adjourned. We are hearing of trials being adjourned and that they will not be re-listed before at least September.

HMCTS has advised that several priority courts will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively. It publishes a daily operational update from the courts and they aim to update it by 9am. The link is https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak.

Also, the courts have circulated a civil listing priority list with Priority 1 listing work which must be done and which includes injunctions, any applications in cases listed for trial in the next three months, any applications where there is a substantial hearing listed in the next month and all Multi Track hearings where parties agree that it is urgent.

In the Priority 2 list, which consists of hearings which could be done, are enforcement of trading contracts, trial involving the survival of a business or the insolvency of an individual, small and fast track trials where the parties say they are urgent, and appeal in these kinds of cases.

Similarly, in arbitration proceedings, the parties and arbitrators are being encouraged to utilise technology to make sure that hearings take place. We have heard of Zoom being used very successfully for multi-party proceedings.

With the loss of face-to-face meetings in the current situation, video conferencing has taken centre stage. But how do you do that in a compliant way? Here are some of the main high-level data protection issues to consider when selecting and implementing a new third party provider’s video conferencing system.

1. Make sure you do your due diligence on the security measures offered by the provider. Clearly you can’t visit them, so look at the information offered publicly by the provider and read good quality, reliable, third party sources and ask the provider questions directly. Also ask any other organisations you know that use the provider. Document all this.
2. If personal information is being sent outside of the UK/European Economic Area, make sure that transfer complies with GDPR. If it’s a US provider, is it registered in the EU-US Privacy Shield list or does it offer a model clause contract (you’re likely to need the 2010 version)? Or is the service provided from a country whose data protection laws offer equivalent protection to those in Europe? Look at the support service as well as the hosting. Document this.
3. Make sure you put a compliant processor agreement in place. The provider should offer one as part of the contract terms. Check it meets GDPR requirements.
4. You’re likely to need to update your privacy notice, particularly if you’re going to record calls. Provide participants with a short message and link to the privacy notice in the meeting invite and on any registration page.
5. Create or update other GDPR-mandated documentation – for example, depending on your use, you may need a legitimate interests assessment and to update your record of processing.
6. Finally, configure and use the system in a secure and compliant way. Look at the settings/options carefully and think through the security and compliance implications of each. That could include deciding who in the meeting can share their screen; whether or not you use passwords for participants; whether or not to record, and if you’re going to record, where to store the recording. Document your decisions and the reasons for them.

The ICO has said it understands that resources, whether they are finances or people, might be diverted away from usual compliance work during the pandemic. However the last thing you need at the moment is to create a bigger problem than the one you are trying to solve. So do the best you can, ask for help from one of our specialists if you need it, and keep the whole thing under review.

On 16 April 2020, Ian Hulme, the ICO’s Director of Assurance, posted a blog for business owners, employers and managers about how to safely roll out the latest video conferencing technology.

On 21 April 2020, the NCSC published security guidance for organisations on choosing, configuring and deploying video conferencing services.

It is a theoretical possibility that “anti-vax” beliefs could be a philosophical belief under the Equality Act 2010 and therefore anti-vaxers have the right not to be discriminated against for their beliefs. Much will depend on why the individual is against the vaccine. Conspiracy theorists (the vaccine is being used as an opportunity to monitor you or it’s all because of 5G) are highly unlikely to be treated as having a philosophical belief!

During these unusual times, we are all having to adapt to what has become the ‘new normal’ and implement changes in how we carry out civil cases. If you are to give evidence in a remote hearing, whether this is by Microsoft Teams, Skype for Business or the Cloud Video Platform, we have pulled together a quick and useful guide below on what would be expected by the courts:

Before the hearing

• Make sure that you have access to the video-conferencing software that will be needed for the hearing. We will tell our clients and their witnesses in advance which platform will be used. The courts have increasingly been using Skype for Business to conduct the hearings (but you may find other platforms being used)
• Test that your camera and microphone are working and it is clear to see/hear you.
• Dress appropriately, as if it was an in-person hearing, and use the same formalities.
• Ensure that the background which is visible on your screen is appropriate and allows for your face to be clearly seen. A ‘blur background’ option may also be available on your settings which you may prefer.
• Make sure that your mobile phone is on silent and you are in a location where there will be no/minimal distractions. You should be on your own in a room when giving evidence, however, as we have all experienced with working from home, sometimes interruptions such as children appearing cannot be avoided.
• Join the call ahead of the allocated time, in order to allow for any small technical difficulties.

During the hearing

• Have a copy of the hearing bundle to hand, so that you can follow the proceedings (this may be in hard copy or soft copy). You are not allowed any other notes or papers, whether hard copy or electronic, in front of you when giving evidence.
• Unless addressing the Judge or you have been directly asked a question, keep your microphone muted.
• When giving evidence, you must make sure both your camera and your microphone are switched on.
• Remote hearings can be difficult and if you do not understand or you do not hear a question properly, then do ask for the question to be repeated/re-framed.
• You should not move away from the screen without permission from the Judge. The Judge will allow time for breaks.
• Address the judiciary and other advocates the same way as you would if you were in a physical courtroom.
• It is permitted to drink water throughout the hearing, but mugs of tea and/or coffee are probably best avoided. It is also not permitted to eat food during the hearing.
• Don’t panic if someone walks into the room or the dog starts barking because there is a knock at the door. Judges are only too aware about what might happen. Communication is key and if the interruption has interfered with your train of thought or the evidence you are giving then do say so.
• Be aware that all evidence is recorded and that a transcript of all evidence can be obtained at a later date.

The reality of these unprecedented times is that enforcement of health and safety legislation by the HSE (particularly through the criminal courts) in relation to Covid-19 is an extremely unlikely outcome.