With the national lockdown set to be in place until at least 7 May and social distancing measures to be in place for many months, the government and Judiciary has introduced a series of measures to keep the wheels of the justice system turning, and in particular to allow the facilitation of remote hearings in the civil courts.
Modern working practices have enabled many lawyers to work from home and continue their legal practice uninterrupted. Parties to litigation are also quickly adapting to new practices to ensure progression in their cases throughout this pandemic. Fortunately, modern technology has enabled many hearings across the country to take place remotely and has even facilitated the conduction of remote trials.
The national emergency and lockdown has presented many challenges for our legal system, and in particular for the court hearings which ordinarily would be conducted in person. In light of such challenges, the Judiciary is supporting the delivery of justice through technology and is encouraging hearings to be conducted by telephone via BT MeetMe, and others by video conferencing using platforms such as Skype for Business and Zoom throughout the lockdown.
In many instances, the facilitation of technology to conduct remote hearings has been a success. On 26 March, the two week trial of a claim by the National Bank of Kazakhstan and The Republic of Kazakstan, reported to be with $350 million, was conducted by remotely via Zoom, and proceedings streamed to the public by Youtube. The HMCTS has indicated that up to 3000 hearings a day are being conducted remotely; therefore, it would seem that lawyers and litigants are quickly grappling with the technology available to ensure progression in their legal matters.
The government’s response to the national emergency saw the introduction of the Coronavirus Act 2020, which includes a provision for public participation in proceedings conducted by video or audio. Where a hearing must be conducted in person, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 makes the exception for people to leave home and gather in groups of two or more, where reasonably necessary to participate in legal proceedings.
Further provisions have been made through the Civil Procedure Rules; Practice Direction 51Y makes provision that hearings can be conducted in private if necessary to secure the proper administration of justice. Practice Direction 51ZA encourages the courts take into account the pandemic when considering applications for adjournment and relief from sanction. The Judiciary has also published a detailed protocol for guidance for remote hearings.
However, litigants should be aware that adjournments sought in current circumstances may not always be granted. On 6 April, John Kimbell QC, sitting as a Deputy High Court Judge in the Chancery Division, took into account the coronavirus pandemic when refusing to adjourn the five-week trial for a claim for £250 million by the joint liquidators of One Blackfriars Ltd, due to start in June. The judge referred to recent examples of remote hearings that had proceeded effectively when ordering the parties to investigate technological solutions to allow the trial to proceed remotely, despite having heard submissions that the technological challenges were too great and there was a real risk of procedural unfairness.
Alternative Dispute Resolution
Where technology has supported the facilitation of remote hearings and trials, it should be straightforward for parties to continue to explore ADR in the forms of remote mediations and settlement meetings. Of course, lawyers should take extra care when using video platforms to ensure that where necessary their conversations with their clients are kept private away from group negotiations.
With social distancing measures likely to be in place for many months, it is expected that many court hearings will continue to be conducted remotely. It could be said that this pandemic will encourage greater use of technology to facilitate remote hearings, even after the coronavirus is brought under control – particularly where remote hearings offer many benefits in terms of efficiency, flexibility and cost to parties. The coronavirus pandemic could very well be the start of change for adopting more remote working and modern practices for both lawyers and the courts.
For further information or advice on any of these issues, please contact us on 01732 770660 or email [email protected].
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.