TELEPHONE APPLICATIONS: A BEGINNER’S GUIDE

For many civil lawyers telephone hearings have been a part of litigation for some time.  Developments today, however, have left some in the profession scratching their heads.   Even basic matters as to who arranges, and pays for, the call are legitimate questions.

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THE RULES

You need to look at Practice Direction 23A – applications.  Section 6 deals with telephone applications.  Basically someone, usually the person bringing the application, has to arrange the telephone hearing with an approved company. That company has to be given all the details of those involved in the hearing (including, obviously their telephone number).  The company will then dial out each participant and once all the advocates (and others) are online will dial the court last.

 

6.5 The court may order that an application, or part of an application, to which paragraph 6.2 does not apply be dealt with by a telephone hearing. The court may make such order –
(a) of its own initiative; or
(b) at the request of the parties.
6.6 The applicant should indicate on his application notice if he seeks a court order under paragraph 6.5. Where he has not done so but nevertheless wishes to seek an order, the request should be made as early as possible.
6.7 An order under paragraph 6.5 will not normally be made unless every party entitled to be given notice of the application and to be heard at the hearing has consented to the order.
6.8 If the court makes an order under paragraph 6.5 it will give any directions necessary for the telephone hearing.
Conduct of the telephone hearing
6.9 No party, or representative of a party, to an application being heard by telephone may attend the judge in person while the application is being heard unless every other party to the application has agreed that he may do so.
6.10 If an application is to be heard by telephone the following directions will apply, subject to any direction to the contrary –
(1) The designated legal representative is responsible for arranging the telephone conference for precisely the time fixed by the court. The telecommunications provider used must be one on the approved panel of service providers (see Her Majesty’s Courts and Tribunals Service website at http://www.hmcourts-service.gov.uk)
(2) The designated legal representative must tell the operator the telephone numbers of all those participating in the conference call and the sequence in which they are to be called.
(3) It is the responsibility of the designated legal representative to ascertain from all the other parties whether they have instructed counsel and, if so, the identity of counsel, and whether the legal representative and counsel will be on the same or different telephone numbers.
(4) The sequence in which they are to be called will be –
(a) the designated legal representative and (if on a different number) his counsel;
(b) the legal representative (and counsel) for all other parties; and
(c) the judge.
(5) Each speaker is to remain on the line after being called by the operator setting up the conference call. The call shall be connected at least ten minutes before the time fixed for the hearing.
(6) When the judge has been connected the designated legal representative (or his counsel) will introduce the parties in the usual way.
(7) If the use of a ‘speakerphone’ by any party causes the judge or any other party any difficulty in hearing what is said the judge may require that party to use a hand held telephone.
(8) The telephone charges debited to the account of the party initiating the conference call will be treated as part of the costs of the application.

JUSTICE GUIDANCE: AND LIST OF APPROVED PROVIDERS

There is useful guidance in the document available here.

Telephone hearings in district registries and county courts

The precise requirements of this guidance will probably be modified to meet the requirements of any particular case, but this gives a useful picture of what is required and what happens.

“Guidelines for telephone hearings in district registries and County Court
Telephone hearings in civil hearings were introduced in 1999 as part of the Civil Justice Reforms following Lord Woolf’s Review of the civil justice system in England and Wales. More recently the availability of telephone hearings has been expanded to cover a wider variety of hearings. To reflect this, the Practice Direction covering telephone hearings has been revised. This is a brief guide on the scheme as it applies in County Courtand district registries.
Rules
The procedures for telephone hearings can be found under Practice Direction (PD) 23 of the Civil Procedure Rules (CPR). This Practice Direction supplements Part 23 of the CPR.
All hearings listed as suitable in the practice direction will normally be held by telephone (PD 6.2)
Procedures under the scheme
Hearings to be conducted by telephone unless otherwise ordered.
  • All allocation hearings, listing hearings, case management hearings and interim applications with a time estimate of no more than one hour.
  • Any other application, with the consent of all the parties and the agreement of the court, shall also be included.
Hearings excluded.
  • Where all of the parties are unrepresented
  • Where more than four parties wish to make representations at the hearing (for this purpose where two or more parties are represented by the same person they are treated as one party).
Applications in respect of hearings not to be conducted by telephone conference
Parties may make applications under the practice direction for a hearing not to be conducted by telephone. If they do:
  • It must be made at least 7 days before the hearing: and
  • It may be made by letter.
Such applications will be determined by the court without the need of the parties to attend court for a hearing. The usual application fee will apply.
Arrangements for the conference call
In the case of interim applications the responsibility for the conference call shall be the applicant’s (providing the applicant is represented)
In all other cases responsibility for the conference call shall normally be with the claimant’s representatives. If the claimant is unrepresented the first named defendant who is represented shall be responsible for all arrangements. The court may on occasions direct another party to be responsible for making arrangements if it sees fit to do so.
All other arrangements shall be in accordance with those set out in paragraphs 6.9 and 6.10 of the Practice Direction. (References to the designated legal representative should be read as the applicant’s legal representative (if any), or the legal representative of such other party as the court directs to arrange the telephone hearing).

Documents

The party arranging the conference call must also lodge at the court a case summary and a draft order if the claim is allocated to the multi-track. The same applies in an unallocated case, where the arranging party considers that it should be so allocated and in any other case where the court has so directed.
If any party seeks to rely on any other document, such as expert reports, cost schedules, skeleton arguments or alternative draft orders, then they must be lodged with the court.
All draft orders should be agreed by the parties in whole or part if at all possible.
Any documents required for the hearing or to be relied upon by a party must be lodged with the court by no later than 4.00 p.m. on the last working day before the hearing. All documents must clearly indic ate the time and date of the hearing and marked ‘for urgent attention’.
Listing and timing
In lists where all or a significant number of the hearings are by way of telephone, it will be critical for them to run on time. In order to facilitate the scheme running smoothly, parties must use their best efforts to: –
  • Give realistic time estimates, as there will be no opportunity to overrun. All time estimates must take into account time for giving judgment, where appropriate and any potential argument as to costs.
  • Ensure all documentation is properly lodged on time.
  • Communicate properly with all other parties to ensure that areas of agreement are clearly determined and areas of dispute can be concisely argued.
  • Ensure that they are ready for the call to be linked up promptly at the listed time.
There may be occasions when the court is not ready for a conference call. In these situations the court will endeavour to provide the parties with an estimate of the delay or an alternative time when the call should be re-connected.
    Conference service providers
    The telecommunications service provider used to facilitate a telephone hearing under Practice Direction 23 must be an approved service provider as indicated at 6.10 (1) of the Practice Direction. From 1st April 20011 the following providers have demonstrated the  capability to facilitate hearings:
Recording of hearings
From April 2007, all telephone hearings will be recorded and stored by the approved service providers.
A request for a transcript of a telephone hearing should be made to the court where the hearing has taken place. Form EX107 (tape transcription request) must be used in all instances. Please see EX107 Info for more information which provides help on completing the EX107 and a full list of court approved transcription companies and prices.
Complaints about service providers
The service providers on the approved list are subject to a contract with the Department. Under the terms of that contract, providers are obliged to have a robust complaints procedure in place.
  • Complaints relating to the provision of the telephone hearings in relation to – for example technical problems during the conference, billing, price and access to calls must be directed to the service provider.
  • If a court or court user wishes to make a complaint about the service provider or their conduct, they must in the first instance contact the relevant court manager and raise this complaint with them in accordance with the procedure set out in the Complaints Leaflet EX343.”

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