Flaux: Remote hearings robbing junior lawyers of vital experience

Flaux: More property cases heading to High Court

Judges will be doing more to encourage the involvement of junior barristers and solicitors in remote hearings, the Chancellor of the High Court has said.

Sir Julian Flaux also outlined how he wanted to see more property cases before the Business & Property Courts.

Speaking to the Chancery Bar Association to mark the end of his first year in post, Sir Julian said the judiciary were concerned about the extent to which “junior barristers and solicitors’ participation is limited to being a tile without picture or sound on a Teams screen” in remote hearings.

He explained: “We have been concerned for some time that even in procedural hearings, particularly in large cases, the parties instruct QCs and the advocacy is done by them, a problem which has been accentuated by the pandemic.

“Without wanting to take the bread out of silks’ mouths, we have been trying, at least informally, to encourage parties to instruct junior counsel and solicitor advocates to do the advocacy at procedural hearings or at least some of it.

“The various court guides either do reflect or will in future reflect this… It is only by doing your own advocacy and making your own mistakes that you learn your trade.”

The problem has been ameliorated in the Chancery Division “to an extent” by the Chancery Bar Litigant in Person Support Scheme, which has continued throughout the pandemic to provide the assistance of junior members of the Chancery Bar to litigants in person, particularly in the applications court.

The scheme “helps the judges tremendously and gives young members of the Bar advocacy experience”, Sir Julian said.

He is not the first judge to express such concerns. A few months into the pandemic, Mrs Justice Cockerill said young lawyers were missing out on a “huge amount” of training because of virtual hearings.

The chancellor said he expected remote hearings to remain the default position for short hearings of half a day or less, interlocutory hearings or appeals where there were no witnesses.

But there would be cases where the judge decided that even a procedural hearing should be in person.

He said: “An example is the case where the parties behave as if the CPR had never come into force more than 20 years ago and fail to cooperate with each other, engaging instead in trench warfare, so that the judge considers an in person hearing, possibly first thing in the morning, is required to instil some common sense.”

Sir Julian said he had been “puzzled” by the “distinct lack of much in the way of property cases in the High Court”.

He acknowledged that, at least in the context of London-based work, that was attributable to the financial limits which meant nearly all the cases were directed to the Central London County Court.

“Nonetheless some members of your association and other specialist associations have expressed concern that there are not more property cases in the High Court, particularly where issues arise on which an authoritative ruling setting a precedent is required.

“It is also the case that there at least three Chancery Division judges who are specialists in the field.

“It is hoped to redress the balance somewhat by ensuring that where an appropriate case arises, the Chancery masters will either keep it in the division or transfer it in from the county court when asked to do so.”

Sir Julian recalled the many predictions that the courts would be “ablizzard of Brexit-related cases”. He continued: “Maybe the storm will come but it certainly hasn’t come yet.”

Further, insolvency and bankruptcy cases, an applications for approval of corporate restructuring plans, have not surged as a result of the pandemic, confounding expectations.

However, an area of the work “which has definitely expanded” was intellectual property, and specifically patents.

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