The Perils of Hybrid Hearings

What follows is a salutary lesson for all judges and practitioners trying to get to grips with the ‘new normal’ of remote and hybrid hearings.  On Friday 24 July 2020 the Court of Appeal overturned the decision of Mrs Justice Judd made on Monday 21 July 2020 not to recuse herself from continuing to hear a fact-finding hearing relating to the death of the subject child’s sibling.

The fact-finding hearing was initially conducted remotely and then moved to a hybrid phase when the judge came to hear evidence from the parents and the intervenor. On the third day of the mother’s evidence (some 3 weeks into the fact-finding hearing) the judge sent the mother home to complete her evidence remotely after she arrived at court complaining of a cough. The judge retired to her chambers having closed her laptop but without  having closed the Zoom link to the hearing. The judge was then overheard  making a number of pejorative remarks about the mother to her clerk, including that she was pretending to have a cough and was trying ‘every trick in the book’ in order to avoid answering difficult questions.

The mother’s application for the judge to recuse herself was refused and appealed. The Court of Appeal found unanimously that the judge’s comments about the mother had crossed the line. Importantly for future cases, the Court of Appeal found that, “the fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant’s evidence”.

Tara Vindis (led by Alison Grief QC) represented the mother in both the appeal and the proceedings below. Oliver Millington represented the Local Authority in the appeal and (led by Damian Woodward-Carlton QC) in the proceedings below.

The link to the judgment can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2020/987.html

Author: Oliver Millington