Having your (next) day in court

I wrote about the experience of my first virtual hearing last April. We were recently into Lockdown 1 and the concept of a judge, barristers and those cheering from the gallery doing none of their thing in a court room but from the comfort of their home/chambers was very new and ground breaking. Things like slowly sinking barristers (his device was slipping exposing his forehead and losing his face) and a judge who had to shut off one system so she could look at the court bundle were properly “teething problems”.

Ten months on and the same case is now before the Court of Appeal. We’ve moved across to Microsoft Teams. One barrister at least continues to work from Chambers (or he mirrors his working environment in his house), and there is the distraction of judging the judges’ surroundings. We see more of some judges than others as they sit at different differences from their cameras.

We obviously cannot record the proceedings otherwise we’d be in contempt but we can listen.

I won’t go into the facts of the case in question but it was one of ours which confirmed a path diversion. I had submitted to the original hearing our case based upon the Secretary of State’s interpretation of the law and the various case law which had looked at the minutiae of a relatively short statutory provision.

The Appellants, the Open Spaces Society, argued through their Leading and Junior Counsel that those previous Judges really hadn’t got to grips with the words used in the statute at all, even when they had been asked to interpret those words in the past – by the same team that was now before the Court of Appeal. If you look at the words, you can, apparently, come to a completely different interpretation to that which has been common ground for over 40 years or so. We are literally looking at a handful of words.

There were a number of times when I questioned my sanity. I am used to making the best argument with limited material, but I struggled with some of the logic behind the Appellant’s submissions or how often you could say the same thing in so many different ways over so long a time. I doubt they were seeking to do so, but it was reassuring that their Ladyships and Lord also seemed nonplussed by some of the arguments being made. I look forward to reading how they decide this.

Come mid afternoon, as Counsel for the Secretary of State finished his (much shorter) submissions, the Court turned to Leading Counsel for the Appellant to say that he had until 4.15 to reply and finish. He pushed the point but the Court was clear that there was no extension of this and the case had to conclude then. Counsel responded that the time estimate was actually one and a half day, leading her Ladyship to say “yes we were all astonished by that”.

I think astonishment was the best description of the day. Let’s hope it ends here.

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