‘The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely.’
Message to the Judges in the Civil and Family Courts, Lord Burnett of Maldon (19 March 2020)
‘It remains the obligation of all involved and at all stages of the hearing, to continue to evaluate whether fairness to all the parties is being achieved. Fairness cannot be sacrificed to convenience.’
Remote Access to the Court of Protection Guidance, Mr Justice Hayden (31 March 2020)
‘It’s time to come together, globally, to accelerate the introduction of remote hearings by judges. We must seize the moment and come together to accelerate the development of new ways of delivering just outcomes for court users.’
Professor Richard Susskind, President of the Society for Computers and Law, and an expert in online courts.
In order to make sure that the courts in England and Wales can continue to function, parties, court users, legal practitioners and judges have been forced to adopt an entirely new way of operating within a matter of days. Restrictions on our movement in order to safeguard our health mean that remote access to the court is now a necessity.
This article: (i) reviews the recent changes to legislation, guidance and protocols as they apply to commercial litigation in the High Court of England and Wales; (ii) identifies some of the key practical challenges for court users and judges; and (iii) raises some (so far) unanswered questions. It is interesting to note that this is part of a general trend across the world, which has been usefully gathered on Remote Courts Worldwide website.1
The recent changes in England and Wales
The legislation, guidance, protocols and rule changes of March/April 2020 have been substantial and frequent as court users get used to operating in the new normal.
An overview of the key recent developments of March/April includes the following:
- Lord Chief Justice: Coronavirus update (17 March 2020);2
- Lord Chief Justice: Message to the judges in the Civil and Family Courts (19 March 2020);3
- HMCTS guidance on priorities during the Covid-19 outbreak;
- Civil Justice in England and Wales: Protocol Regarding Remote Hearings (‘Remote Hearings Protocol’) (20 March 2020);4
- Lord Chief Justice: Review of court arrangements due to Covid-19 (23 March 2020);5
- CPR Practice Direction 51Y – Video or Audio Hearings During Coronavirus Pandemic
- Coronavirus Act 2020;
- High Court Business: Contingency Plan for maintaining Urgent Court Hearings;
- HMCTS updated guidance on telephone and video hearings including re oaths and affirmations (last updated 14 April 2020);6
- HMCTS guidance on civil court listing priorities and daily operational summary on courts and tribunals during Covid-19 outbreak.7
The Remote Hearings Protocol
This protocol is the main place where the new guidance for the preparation and conduct of remote hearings is set out. It applies to all hearings in the County Court, High Court and the Court of Appeal (Civil Division). The method by which remote hearings are conducted is always a matter for the judge. When a hearing is fixed, the court will propose one of three solutions to the parties:
- a remote communications method for the hearing;
- that the case will proceed in court with appropriate precautions to prevent transmission of Covid-19; or
- adjournment ‘because a remote hearing is not possible and the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time.’
Unless it is necessary for a hearing to be in private, remote hearings should be public hearings. Unless the judge has directed that the proceedings will not be recorded, a recording will be made by a court official or, if arranged by the parties and with the court’s permission, private transcribers.
Other legislation, guidance, protocols and rule changes
HM Courts and Tribunal (‘HMCTS’) Service, which is responsible for the administration of criminal, civil and family courts and tribunals in England and Wales, has issued Guidance on telephone and video hearings during Coronavirus outbreak. HMCTS confirms that they are ‘rapidly scaling up’ their audio and video capabilities and are ‘working hard to find solutions to problems that haven’t been seen before.’
Section 55 of the Coronavirus Act 2020 is entitled ‘Public participation in proceedings conducted by video or audio’. Schedule 25 of the Act makes amendments to the Courts Act 2003 in relation to video or audio recordings of hearings. The new sections 85A-C of the Act provides that the court may permit video and audio proceedings to be broadcast or recorded and prohibits unauthorised broadcasting and recording.
The new Civil Procedure Rules Practice Direction 51Y (PD) confirms that where the proceedings are to be conducted wholly by video or audio and it is not practicable for the hearing to be broadcast in a court building then, if it is ‘necessary to do so to secure the proper administration of justice’, the court may direct that the hearing must take place in private. The PD states it is not necessary to make such a direction where a representative of the media is able to access the proceedings remotely while they are taking place. Where a private hearing takes place, such a hearing must be recorded either by video or audio. With the Court’s permission, the public may have access to such a recording.
On 26 March 2020, the judiciary produced a Contingency Plan for maintaining Urgent Court Hearings and civil court listing priorities which differentiates between ‘urgent business’ and ‘business as usual’ and explains how these two types of work are to be dealt with. The plan explains that any business that is sufficiently urgent to warrant an out-of-hours application in normal times will be considered urgent business for the purposes of the Contingency Plan.
Business that is not urgent (ie ‘business as usual’) will continue to be dealt with as far as possible in accordance with the contingency plans put in place by the different Divisions and Courts. However, urgent business will be given priority. On 2 April 2020, HMCTS identified listing priorities in the civil courts according to ‘work that must be done’ (Priority 1) and ‘work that could be done’ (Priority 2). As far as commercial litigation is concerned:
- Priority 1 cases are: committals, freezing orders, injunctions (and return days for ex parte injunctions), enforcement work that does not involve bailiffs (eg third party debt orders), any applications in cases listed for trial in the next three months, any application where there is a substantial hearing listed in the next month and appeals in these cases.
- Priority 2 cases are: applications for summary judgment for a specified sum, applications to set aside judgment in default, applications for security for costs and preliminary assessment of costs.
Key practical challenges
Various reports have emerged about how the guidance is operating in practice. In general, the view is that while the guidance ought not to affect adversely the conduct of applications or short hearings, even where they are fixed in the near future, there is concern about conducting witness actions in a remote court.
Some of the challenges of an upcoming trial including:
- providing bundles to witnesses and requiring witnesses – maybe with poor internet connection – to navigate documents without assistance placing them under undue pressure;
- lack of a solicitor present to ensure witness probity; and
- the risk of interruptions to internet service or failure of the technology altogether.
There are many video conference providers out there. Deciding which online platform to use for hearings is fraught with difficulties and judgment calls. Many courts have used Skype for Business, Webex and Zoom to conduct remote hearings. Press reports in recent days have raised questions about the integrity of certain software (eg Zoom). Preserving confidentiality given the highly sensitive nature of some court hearings is paramount. Blind reliance on what the other side offer is not advisable. Liaising with your firm’s IT experts to weigh the pros and cons of each online platform is key. But no system or software is completely immune to cyber-attack. What we can do is (1) recognise that users, ie the human factor, are a crucial element of any organisation’s information vulnerability, and (2) take steps to mitigate that risk. Brown Rudnick currently uses a platform which we have road tested and which has high security suitable for the highly sensitive nature of our clients’ matters. The platform has a helpful security feature which allows the host to lock a ‘meeting’ at any point to prevent others from joining and to put participants in the ‘waiting room’ while for example the hearing continues in private.
It is inevitable that these wholesale changes in our way of conducting hearings, trials and appeals will throw up lots of different problems which the Government and the judiciary will need to address, such as:
- Open justice – some commentators have suggested that the new provisions may require further elaboration and standardisation to ensure compliance with the constitutional principle of open justice (ie ‘participation’, ‘observation’ and ‘accessibility’).8
- Access to justice – the Justice Committee was particularly concerned about how ‘poor digital skills, limited access to technology and low levels of literacy and legal knowledge’ might raise barriers to access to new digital services. Those concerns apply even more forcefully under the new guidance.9
- International parties and witnesses – the logistics of arranging fully remote hearings with witnesses based abroad raises another set of considerations (eg use of e-bundles, restricted access to internet and certain audio/video conferencing facilities).
- The lessons of international arbitration – the practice of remote hearings is familiar to many arbitration practitioners and various soft law guidance has been published.10 The judiciary and HMCTS could usefully consider how arbitral tribunals have dealt with similar issues of concern.
In our view, it is almost inevitable that remote courts in England and Wales are here to stay in some form or other. The current pandemic offers up a real opportunity for courts to offer justice online thereby making it more accessible. Using technology to conduct more hearings also suits our now much more global, mobile, and connected society, saving clients from having to jet in from different parts of the world, in turn mitigating the impact on the environment.
This article was first published in the IBA Litigation Committee newsletter in May 2020, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
1 Available at https://remotecourts.org/.
2 Available at https://www.judiciary.uk/announcements/coronavirus-update-from-the-lord-chief-justice/.
3 Available at https://www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/.
4 Available at https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.Civil_. GenerallyApplicableVersion.f-amend-24_03_20-1.pdf.
5 Available at https://www.judiciary.uk/announcements/review-of-court-arrangements-due-to-covid-19-message-from-the-lord-chief-justice/.
6 Available at https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak.
7 Available at https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak.
8 Available at https://coronavirus.blackstonechambers.com/coronavirus-and-public-civil-hearings/.
9 Available at https://publications.parliament.uk/pa/cm201919/cmselect/cmjust/190/190.pdf.
10 See for example, Hague Conference Draft Guide to Good Practice on the Use of Video-Links Under the Evidence Convention, March 2019; ICC Commission Report on Information Technology in International Arbitration, October 2017 and the Seoul Protocol on Video Conferencing in International Arbitration.