Katherine Evans participates in the IR Global Disputes Virtual Series – Technology & Disputes: The impact of new technology on litigation and dispute resolution

Katherine EvansSenior Partner, Mirkwood Evans Vincent

Foreward by Andrew Chilvers

For the legal sector, COVID-19 has been a huge catalyst for change globally. Overnight, almost all legal advisors decamped en masse from their expensive mid-town and city offices to their homes to work. Personal meetings suddenly disappeared to be replaced by virtual meetings on Zoom or Microsoft Teams.

As the UK went into Lockdown only 2% of lawyers admitted they worked from home, according to a recent survey by RollOnFriday. com. Those attitudes have now changed radically as countries and territories around the world have gone into Lockdown and the vast majority of people have become home workers. Now almost 75% of legal advisors admit they would happily work from home three days a week and – amazingly – only 7% said they wanted to return to the office full time.

Above all, working remotely may have broken the longstanding links between office and work. Some 44% of respondents said in the long term they only wanted to return to the office for two days a week at the most. Many lawyers also believe working from home is good for their work /life balance. Elsewhere, many have said working remotely significantly improves efficiency, with less commuting time and disturbances around the office. In this virtual series legal members of IR Global gave a fascinating insight into this new world of working and how each jurisdiction has been handling their operations during Lockdown and the post-COVID-19 period.

What steps are you taking to adapt your services to the new remote working environment?

At Mirkwood Evans Vincent, we have always done things a bit differently, preferring virtual working practices over a more traditional fixed office model with higher overheads and correspondingly higher client fees. In 2008, one year after the firm started, Legal Hobbit (as we were then called) was the only sole practitioner firm to make the Law Society’s six firm shortlist of most innovative law businesses in the country, with our focus on new technology, remote working and alternative client pricing options. The firm has grown a bit since 2008 and changed our name to Mirkwood Evans Vincent, but we have kept our focus on being able to provide fully functional legal services to our international clients, anytime and anywhere, and independently of fixed bricks and mortar locations.

I was an in-house lawyer for an international US company for 10 years before I started Mirkwood Evans Vincent, and that experience acclimatised me to building relationships with clients all over the world, many of whom I never actually got to meet. I have some clients now who I have known for 15 or even 20 years but have still never actually met in person.

I guess for my firm, remote working is normal. My business partner is in a different part of the UK but we speak most days. I bought a house that I turned into a law office and I have another two lawyers who come in when they need to, but it’s easy for them to work from home because all of our systems are in the cloud as they have been more or less since Day 1.

Since the arrival of COVID-19, we have even started getting used to doing court and tribunal hearings remotely. As a firm, we don’t do a great deal of litigious work but because we act for a number of businesses as a virtual in-house counsel, litigious matters inevitably crop up in those businesses from time to time, making brushes with employment litigation, debt recovery actions and insolvency matters, occupational hazards. I think that the more lawyers become involved in remote hearings, the more they will prefer them as an alternative to travelling to court. I predict that with the possible exception of complex multi-day trials, video conference hearings for civil matters is likely to become the new permanent normal for the UK.

For law firms that are just starting to get involved with virtual technology, I would tell them to embrace the change. It is very liberating to be able to control your own day in a way that you can’t do when you’re spending multiple hours a week commuting between home and office, and your clients will appreciate that you can provide services seamlessly and across jurisdictions, when they need support and not just during local country office hours, when you have access to the facilities in a particular building.

Virtual commissioning – are we there yet?

In the UK, we have had a “best available copy” rule for contracts for a number of years, meaning that electronic authentication of contracts has been acceptable, as has been just signing a document in physical form and scanning that signature into an email for exchange with the other side. It is only where there has been an allegation of fraud that the evidence would have been further investigated in terms of the authenticity of the method of authorisation in a particular case.

In the UK court system, we have a situation where money claims can be filed online, so that whether you are a litigant in person or a company, it is possible to log into the online money claims system, and issue a claim by inserting the relevant details of the claim and paying the court issue fee. In terms of other court documents, and whether in relation to simple money claims or more complex litigations, these are typically sent to the court and inter-parte by email only. There is no requirement for physical documents to be exchanged, and where documents are emailed to the court, the court clerk will put them on the record for the attention of the judge in due course. There are some complexities around the authentication process for affidavits. They can be executed remotely using a video-conferencing application but both the individual swearing the affidavit and the witness both have to be online at the same as each other, so that the witness can validate the execution of the affidavit by the signatory and vice versa.

Historically, it has not been permissible in the UK to execute wills remotely, due to concerns that a person might be put under undue pressure to give away their worldly possessions in a way that they might not otherwise have chosen. This restriction became highly problematic with the arrival of the COVID19 epidemic, particularly in cases where people in care homes were close to death and needed to sign their wills in front of a witness but could not get a solicitor out to the care home due to a ban on non medical/care home personnel visiting such locations. A limited relaxation of the rules around will execution has now been put in place for the term of the pandemic, so that solicitors can remotely witness wills by video conference.

It is not yet clear whether this relaxation will remain in place once the effects of the pandemic have subsided. At the moment, the guidance suggests that it may not.

A more permanent relaxation of the rules has taken place in the UK in 2020 in relation to the execution of documents relating to the transfer of land. The UK Land Registry has now put in place a new set of procedures for the acceptance of electronic signatures. Further details are available from the UK Land Registry website at www.gov.uk/government/organisations/land-registry.

What is happening regarding online dispute resolution in your jurisdiction?

In the UK, all the courts have put procedures in place to facilitate online hearings. As the effects of the pandemic subside, it has become possible for larger trials to be held in a physical court setting, subject always of course to appropriate social distancing procedures being in place but there has been an increasing reliance on remote hearings at all levels of the justice system.

Regarding the applications being deployed by the courts to facilitate online hearings, the UK courts seem to have opted for Microsoft Teams as their preferred solution, I agree with Tony (Turks and Caicos) that Microsoft Teams is not the most intuitive product available in the marketplace but I guess we will have to learn to live with it, for the time being at least.

In terms of the approach to dispute resolution, there’s always been a choice of virtual vs physical hearings in the UK. Since most of the mediations I become involved in concern international parties in more than one jurisdiction, it would be highly unusual for me to participate in a face to face mediation. They have almost invariably been held by video conference.

Regarding the rise of technology, how much do you understand about blockchain for your clients?

The UK is currently piloting blockchain as evidence at trials. I have no great confidence that the courts will be able to make this work in a cost-effective way. I act for some clients who design blockchains, and whilst their solutions have undoubtedly been extremely useful in terms of (for instance) putting in place validation methods to establish the origin of particular goods from gemstones to coffee beans to regional specific foods, it seems to me it should be possible to design a system for the filing of court documents using basic database construction methodologies, without the need to resort to the expense of designing a blockchain.

It seems to me that in a lot of senses it’s being used because it’s trendy and it’s not necessarily the best way of getting your evidence chains in line. Whenever people mention it to me, I always say: “Why is this better than something else? Do you realise how expensive it’s going to be to create this structure?”