Remote hearings – a pandemic phase or modernisation of the litigation process?

As we approach the second anniversary of COVID-19 related restrictions in the UK, HM Courts & Tribunals Service has published its evaluation of remote hearings which were quickly adopted when in-person hearings could not take place. Looking to the future, how will the courts be holding hearings? Remotely or in-person?

Successes and failures of remote hearings

The survey suggests that remote hearings have generally been well liked by court users. Public users attending remotely were more likely to be satisfied with their court experience and typically felt able to understand what was happening and the subsequent outcome. The reduced formality also put them more at ease. 69% of legal representatives also thought that remote hearings were comparable to in-person hearings and 72% felt the hearings were the same length or shorter than in-person hearings.

However, court users also experienced some issues with remote hearings. One in five public users faced technology issues when trying to attend a hearing and the lack of being in the same room meant that discussions between a client and their legal representative during the hearing provided difficult for some. A lack of access to a device (or multiple devices so as to attend and view an e-bundle simultaneously) and difficulties using interpreters also proved problematic.

58% of judges and 54% of legal representatives felt that remote hearings impacted their health and wellbeing due to tighter schedules, increased workloads and an inability to separate work and home, and 37% of judges felt that remote hearings were not comparable to in-person hearings. In addition, there were judicial concerns about a decline in formality, such that attendees were distracted and not concentrating on proceedings with some having the TV on, smoking or making drinks during the hearing. There were also problems with people attending from inappropriate locations, including driving on a motorway, on a plane and walking down the street. 64% of judges also felt that remote hearings were longer than in-person hearings.

Looking forward

Looking ahead to the future, 77% of legal representatives, 56% of public uses and 49% of judges stated that remote hearings would continue to be acceptable, with a preference for video over telephone hearings.

It does however seem that the judiciary and legal representatives consider that the circumstances of each individual hearing would impact whether they preferred an in-person or remote hearing.

During the pandemic, the vulnerability of the parties, subject matter of the hearing, complexity of the issues and seriousness of the case have all impacted the decision as to whether a hearing was held remotely or in-person. This is likely to continue going forward. In personal injury cases for example, a costs and case management conference  or application hearing, where the attendees will likely only be counsel and the judge, can most often be effectively held remotely, whilst cross-examination of a witness at trial may be best achieved in-person.  

We can envisage general principles developing for different hearing types, whereby some are automatically listed for remote hearings and others automatically listed for in-person hearings, subject to judicial discretion. What type of hearing would be classed as remote or in-person will likely vary between the courts with some (criminal) likely opting to use remote hearings much less than others (civil, family, employment). The report however suggests that clearer rules and guidance should be established as to how remote hearings should be conducted to ensure consistency, fairness and access to justice across the court system.

Based on our experiences of remote hearings over the past two years, the maintaining of them in suitable situations with clearer rules and guidance would be welcomed as a further modernisation of the litigation process.

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