A Flexible Opening Hours (FOH) pilot scheme for civil and family cases is due to commence in Spring 2019. It is intended to provide easier access to the courts for those who have to balance litigation with their own, increasingly non-traditional, schedules. But will the scheme actually benefit working families, or is this an ill thought through attempt at modernisation without real consideration of the practicalities?
Currently, court hours are 10am – 4pm. The pilot would involve two "shifts" in the court day: one judge would hear cases from 8am to 1pm when another would take over, with a fresh set of cases from 2pm – 4pm and 4.30pm – 7pm. The government has been clear that the intention is not that the same people would need to work from 8am – 7pm, but that lawyers, judges and court staff would need to work more flexible hours.
On the surface, this sounds like good news for litigants. The current court operating hours fall within most people's working day, and taking time off work to go to court is often difficult – particularly when a party may need to attend multiple times. The ability to have a hearing before work at 8am or after work at 6.30pm would be a welcome recognition that modern life requires greater flexibility than working practices of old.
The legal profession, however, has argued that the requirement to work flexible hours would discriminate against those with caring responsibilities, who would find it more difficult. Concerns have been raised that the proposals would lead to lawyers needing to work even longer hours and requiring additional staff to provide support for the additional court hours. In practice, the scheme may be problematic for litigants too, given many will also have caring responsibilities. Although the pilot is said to be operating on a voluntary basis, if it is rolled out more widely, litigants may struggle to obtain childcare during the more unconventional court hours.
The reality is that the current court system is not as efficient as it should be. It is not unusual for parties who have been told that their case will commence at 10am to still be waiting to be heard by a Judge at 12pm. Whilst judges are working as hard as possible to deal with all their cases, the system itself is inefficient. Those hoping to have their hearing after work are likely to have their case put in the court timetable for 4.30pm, or possibly even 2pm, as there are will be other cases also due to be heard in the "late" slot. The entire purpose of the scheme would be defeated.
There is, perhaps, a better way. "Virtual hearings" – allow parties and their representatives to attend court remotely from their own office or home by way of a virtual courtroom. They would be patched in once the Judge was ready, meaning that the interminable waiting currently associated with going to court could be avoided. This could address many of the concerns of the legal profession as well as being more convenient for individuals. It would be particularly helpful for international clients who are currently expected to travel to this jurisdiction to attend their hearings.
This idea is still in the exploratory stages and virtual courts are not yet a normal part of the court system. However, given the advantages, it would be sensible to develope, test and perfect this technology at the earliest opportunity. Once virtual courts are commonplace, having a virtual hearing at 8am or 6pm would be far more convenient than the current proposals.
The government's attempt to modernise the courts is to be applauded, but the FOH pilot could cause more problems than it solves for parties and their lawyers alike. Developing systems that enable court users to access the courts more flexibly before attempting to roll out more flexible hours is likely to save many an hour in limbo.