Surrey Heath Borough Council v Robb & Ors

During the Covid-19 pandemic, the starting point was that hearings should take place remotely wherever possible. A party seeking an in-person hearing had to identify the need for one and explain why justice could not fairly be achieved by video hearing. The court should consider the nature and consequences of the case, the parties’ ability to participate and give instructions, any proposed cross-examination, and the prevailing public-health circumstances. At an interim hearing, cross-examination is unusual and should not be ordered without a good reason. Practical adjustments, including breaks and arrangements for parties and lawyers to confer, may address difficulties caused by a remote format.

Surrey Heath Borough Council sought continuation of an interim injunction affecting the defendants’ residence on land. The defendants sought discharge and argued that the substantive interim hearing fixed for 1 July 2020 should take place in court. They relied on their need to obtain instructions during the hearing, the effect of the injunction on their homes, and a proposed cross-examination of the claimant’s witness. Earlier hearings in the matter had taken place remotely because of the Covid-19 pandemic. The issue was whether the interests of justice and the parties’ participation required an in-person hearing.

1. Remote hearing ordered. The hearing on 1 July 2020 was directed to take place by video. The continuing pandemic and significant public-health issues made it inappropriate to convene a courtroom hearing where justice could be obtained remotely.
2. The Covid-19 Protocol stated that remote hearings should be used wherever possible. Against that background, the onus lay on a party seeking an in-person hearing to draw attention to the requirement and provide reasons why a remote hearing would not be just.
3. The defendants’ need to obtain instructions did not justify an in-person hearing. If necessary, the defendants and their legal team could meet in suitable premises, and the hearing could include breaks to facilitate consultation.
4. There was no sufficient basis at that stage for ordering cross-examination of the claimant’s witness. Cross-examination, particularly wide-ranging cross-examination, was unusual at an interim hearing and this was not the trial. The application could be renewed before the judge hearing the matter on 1 July 2020, who would have the benefit of the further evidence and the context of the hearing.
5. The decision took into account the defendants’ expressed wishes, the nature and consequences of the case, the possibility of cross-examination, the claimant’s wish for continuity of representation, the pandemic and the public-health issues. The parties were required to be ready to proceed remotely in any event.

The judgment itself records earlier procedural steps in the same proceedings, including a without-notice injunction and earlier remote hearings. It was a first-instance procedural decision and no appellate stage is stated.