An Australian court refused to postpone a six-week trial, and ordered the parties to work out the details of how the trial can proceed electronically. The parties have to decide on an electronic platform, how documents are to be exchanged, and how experts will confer prior to the trial.

In light of COVID-19, the defendant asked for postponement of the trial which is set to be heard from 15 June 2020. The defendant raised the issue of the safety of lawyers and witnesses. The plaintiff opposed the application on the basis that the trial can be conducted virtually.

The defendant pointed out a number of difficulties associated with a virtual trial including technological limitations, physical separation of legal teams, cross-examination of expert and lay witnesses, document management, extended trial length and expense. These were dealt with by the court as follows:

  • Where internet connection is an issue, the taking of evidence from a witness in a rural area may be abandoned and rescheduled to a time and place where a better internet connection can be found. Another solution to internet connection problems may be to pause the hearing until the connection improves.
  • The parties had two months before the trial and there was the possibility of superior technology solutions being found in this time.
  • It is common for the people sitting behind counsel to convey useful and sometimes critical information to senior counsel via junior counsel and likewise junior counsel frequently are able to assist senior counsel during argument. The legal teams may achieve this by using WhatsApp communication.
  • Although conducting consultations with expert witnesses on a virtual platform will be slower, more tedious and more expensive, the process is not unfair or unjust.
  • Expert witnesses from different jurisdictions may prepare joint minutes virtually. The time zone problem can be solved by the court sitting at different times.
  • Where a lay witness does not have a computer or does not adequately know how to use the chosen technology, they may enlist the assistance of a member of their household. However, where this help is not available, the court will deal with the issue when it presents itself.
  • Cross-examination via video-link has previously been said to be unacceptable. The judge noted that through virtual platforms, he has been able to look at witnesses from about one metre away and his perception of the witness’ facial expressions is better than in the courtroom. What is also different, significant and undesirable, is that video-link technology tends to reduce the chemistry which may develop between counsel and the witness, it creates a reduction in formality and there is some difficulty in dealing with objections. But these issues did not override the need to deal with the problems in the present situation.
  • The large number of documents involved is not an issue. The problem of witness and cross-examination bundles is solved with a service such as Dropbox.
  • Future problems like practitioners and witnesses falling sick or being required to care for children or sick people during the trial, will be addressed by being sensitive to these issues and allowances being made for them when they arise.
  • The court admitted that conducting a trial virtually may prolong the hearing and increase its cost. However since there is no guarantee that the situation will be any better in the near future, a postponement was not granted. It is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for a prolonged period. Nor is it healthy for the economy.

Virtual trials may become common – a UK court had an all-Skype trial in March 2020. South African courts have begun to hand down judgments electronically via email and publication on court websites, for example the case of Liberty Group Limited v Illman.

These examples may persuade South African courts to allow for virtual trials, where possible, even (with refinements) beyond the present crisis.