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As this is a fast moving topic, please note that this article is current as at 01/05/20. For further information, please contact John Harvey or David Roberts.
Since the COVID-19 pandemic hit our shores, the courts have had to adapt very quickly to the number of new laws issued and court decisions reached in respect of remote proceedings, the main one being the Coronavirus Act (the Act) which came into force on 25 March 2020.
Three new practice directions of the Civil Procedure Rules (CPR) have been introduced to supplement the Act.
Practice Direction 51Y
The Court is permitted to direct that the hearing may take place in private where it is practical and necessary to secure the proper administration of justice. Private hearings are to be recorded.
Practice Direction 51ZA
Parties can agree time extensions of up to 56 days without the court’s permission. A formal CPR application for permission to listen to or view a recording of a hearing is unnecessary.
Practice Direction 51Z
Possession proceedings brought under CPR 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are automatically stayed for 90 days with the exception of claims against trespassers, applications for an interim possession order under Section III CPR 55, applications for case management directions agreed by all parties and claims for injunctive relief.
These new practice directions will help to and indeed have eased pressure on the court system.
Judicial endorsement of the new legislation
The judiciary have welcomed the use of live streaming, new technology and remote trials as evidenced by the following decisions:
In Re One Blackfriars Ltd [06.04.2020], the court dismissed the application for an adjournment of the trial on the grounds of the pandemic restrictions. John Kimbell QC sitting as a Deputy High Court Judge said “It seems to me very clear….. the legislature is sending a very clear message that it expects the courts to continue to function so far as they able to do safely by means of the increased use of technology to facilitate remote trials.”
National Bank of Kazakhstan & Another v The Bank of New York Mellon & Ors [22.04.2020] was the first trial held remotely in the Commercial Court and viewed via YouTube with witnesses giving live evidence from overseas.
Mr Justice Teare commented “the guidance given by the Lord Chief Justice is very clear. The default position …must be that hearings should be conducted with one, more than one, or all participants attending remotely.
Adjournments
The cases so far heard have found that hearings will not be adjourned on the sole ground of the pandemic as in the case of Re One Blackfriars Limited [2020]. John Kimbell QC said “as many hearings as possible should continue and they should do so remotely as long as that can be done safely.”
In MillChris Developments Ltd v Waters [07.04.2020] an applicant contractor sought an injunction preventing an adjudication from going ahead on the grounds of the pandemic restrictions breaching natural justice. Mrs Justice Jefford in the Technology and Construction Court (TCC) refused to grant the injunction because the applicant’s difficulties in obtaining evidence were not as a result of COVID-19.
Conversely, in Muncipo De Mariana & Others v BHP Group PLC [20.04.2020], Mr Justice Eyre in the TCC granted a longer extension of time than that requested and adjourned the trial to a later date due to the pandemic. The TCC concluded that the proper use of technology and remote hearings would not have assisted to keep the timetable on track.
The decision reflects the court’s consideration of all issues and supports the central drive to continue with remote hearings where possible.
Challenges
We live in a digital age where technology advances at a fastening pace. However, expanded use of technology creates new challenges for unfamiliar users. Court staff will require appropriate training to enable the arrangement of remote hearings. Practitioners who prefer to review documents in hard copy format may also find it difficult to adapt to the use of electronic bundles.
Legal practitioners and witnesses who are not technologically savvy will quickly need to master facilities such as Skype for Business, Cloud Video Platform, Zoom, Microsoft Teams and BTMeetMe. Some witnesses may not have access to the allocated platform technology and/or required computer equipment and/or the means to purchase such computer equipment.
It is also sensible to test technology prior to use, to ensure that it is properly functioning. Further, there are logistical difficulties in allowing confidential information to be shared amongst legal teams during a remote hearing.
All of these issues need to be anticipated by users in advance of a hearing that could be listed at short notice.
Open justice
Open justice is fundamental to the English legal system. HMCTS (Her Majesty’s Courts and Tribunals Services) lists a number of measures to support the principle of open justice on the government’s website including providing transcripts upon request and providing accredited media with access to information.
During these restricted times however, it may be difficult for the Courts and Tribunals system to fully achieve open justice. Facilitating public access will be an area of focus for continued improvement if remote hearings are to become the new normal.
Benefits
Nevertheless, there are significant benefits of remote hearings such as reduced travel costs. This will result in a significant reduction to a party’s legal costs as well as reducing our carbon footprint. Additionally, it comes at a time when there is a severe shortage of court staff and the closure of courts due to costs savings.
Remote hearings appear to have progressed without major problems.
In the long term we can expect that new technology will increase the efficiency of court management through operating on a paper light basis. It is possible that an increasing use of technology will prompt parties to adopt a more focused approach towards litigation which will narrow the issues for the court to determine.
Comment
For better or worse, the pandemic has accelerated use of new technology. Ideally, there would be further time to adapt and there are challenges ahead to address. However, if successful during the lockdown, remote hearings could become the new norm when ordinary life resumes.
United Kingdom