As Government, businesses and individuals adjust their response to the COVID-19 crisis, the Courts have reiterated that justice should continue to be administered, including in civil disputes. To meet this challenge, the Courts are adapting their practices and putting in place arrangements to continue as many hearings as possible remotely.
Telephone hearings and the use of electronic bundles, were already common in the Courts. The Courts are now rapidly expanding the deployment of video and other technology, so that the parties and the Judge are all able to attend hearings remotely. The default position now is that all hearings should be held remotely, where this is possible. This will include final hearings (trials) and hearings with contested evidence – otherwise, as noted by the Lord Chief Justice in a statement to the judiciary in the Civil and Family Courts, "there will be no hearings and access to justice will become a mirage", with unmanageable levels of backlogs building up in the Court system. For Family proceedings, the intention also is that remote hearings will be widely utilised and that these are, as much as possible, to replicate the procedure and format of a "live" hearing.
The Courts will make arrangements for remote hearings still to take place in public, so far as possible, and to make a record of the hearing (as explained in a new Practice Direction 51Y). The Coronavirus Act 2020 also expands the availability of video and audio links in court proceedings.
Whilst some parties might prefer to ask the Court to adjourn a forthcoming hearing, judges are unlikely to be sympathetic to such a request unless there is a specific reason why COVID-19 may impact on the hearing, or logistical reasons why the hearing cannot proceed. Clearly, some trials, especially those involving overseas parties and substantial numbers of witnesses, may need to be considered carefully. However, the Courts will not adjourn a hearing based simply on the fact that a remote hearing is not as straightforward as one held in a courtroom. For example, in one recent case, the Court rejected a party's application to adjourn on the basis that a video hearing would be 'an unmitigated disaster'. The judge stressed that the Court has to be optimistic about using the technology, and there is a duty on all parties to seek to co-operate to ensure that a remote hearing can take place. As an alternative to a remote hearing or an adjournment, for hearings to deal with a procedural point, it is possible that the judge will determine the issue on the papers, i.e., without oral argument.
Parties and their lawyers who embrace the technology will find that remote hearings can be as effective as one taking place in a courtroom, but there are a number of best practices. In addition to the system used for the hearing, separate systems will be needed to ensure effective communication between the lawyers and their clients during the hearing. In recent years, the consistent message from the Courts has been that parties and their lawyers should do more to co-operate, in order to streamline the litigation process and to keep costs proportionate. In order to ensure remote justice is administered effectively, the Courts have said they expect the parties to be flexible and to facilitate the process. This will involve being sympathetic to any technological or other practical difficulties.
The Courts' information on the use of remote hearings and other practical issues arising as a result of COVID-19 is being regularly updated and can be found here. Detailed guidance has been given by MacDonald J for Remote Family Hearings, which likewise will be updated as the remote hearing regime develops.
Practical guidance for COVID-19
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