COVID-19 Has changed the way construction and labour law litigation is conducted through digital communication.

Litigation and consultation in the New World Order; my experiences.

Quite a grand title but there is no doubt that the Covid 19 pandemic has changed the way construction and labour law litigation is conducted through digital communication rather than face–to-face. I mention these two areas of law because my experience of the effect of the Covid 19 pandemic is limited to these two areas.

I am encouraging my clients to consult with me via Zoom. I enjoy using Zoom as a means of consulting with clients because it is incredibly quick and efficient for both the client and me. A client emailed me the other day asking for some advice. I responded by proposing a Zoom consult which I arranged and thereafter we had a 15 minute consultation. Quick and easy and the client did not have to travel to my offices thus saving time and money. I find arranging Zoom consultations results in quicker access for the client to legal advice. Furthermore Zoom consultations in my experience tend to be quicker than a face-to-face consultation. Not all issues can be dealt with by Zoom and where there is a lot of paperwork and detailed instructions I prefer a face-to-face consultation, usually at the offices of my client, so that they can access documents as and when I request.

Litigation is now also being conducted by Zoom. This is largely confined to pre-arbitration meetings, and review applications, in which the parties simply have to argue off the papers. My experience is that these processes are extremely quick and efficient and I think that going forward more and more legal practitioners will want to use this form of communication. 

In the Labour Court, legal practitioners are required to motivate why they require oral argument in the motion court. The motion court is where applications are heard based upon affidavits. I recently conducted litigation involving an urgent application in the Labour Court. The parties agreed that they did not need to make oral representations in addition to the heads of argument that had been filed. The court decided the matter on affidavits and heads of arguments that we submitted. 

The fact that an advocate and/or an attorney did not have to attend court, and sit around waiting for the matter to be called, resulted in an expeditious process and  saving of legal costs for the client. I am not suggesting that all applications may be heard without oral argument but there are certainly a lot that may be.

I recently conducted a three-day arbitration in the CCMA and was given the opportunity of presenting evidence by Zoom. I elected not to do so because I feel that the atmosphere of cross examination would be lost if it were to be conducted by Zoom. Having said that, years ago I conducted a maintenance enquiry where the court sat in New Zealand and my client and I were in our offices in Johannesburg. My client gave evidence and was cross examined over the phone about midnight as zoom and the other digital platforms were not available at that time. It was a very different experience because we could not see the cross examiner nor the judge therefore we could not read the body language of the participants which I think is a very important aspect of the trial experience.

NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact The Construction Platform on 011-234 2125 or enquiries@theconstructionplatform.co.za

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