Remote justice – how the Courts are adapting to the crisis of COVID-19

The legal profession has had to adapt quickly to the continuing restrictions imposed by the global pandemic, Covid-19.

Firms and chambers have rapidly put in place arrangements for their partners, members and staff to work from home. But what about those who would regularly spend most of their time in Court? How has a system that ordinarily requires litigants and their legal teams to attend hearings in person adapted to this time of crisis? When most people only require the assistance of the Court as a last resort or when they are at their most vulnerable, what measures have been put in place to ensure there is continued access to justice?

Looking at the administrative side, HMCTS has consolidated its work into fewer courts. Courts are categorised by “open courts” (open to the public for essential face-to-face hearings), “staffed courts” (staff and judges will work from these buildings, but they will not be open to the public) and “suspended courts” (temporarily closed). A tracker is published by HMCTS on a daily basis, showing which Courts fall under which category.

Family and Court of Protection

Guidance from the Family Courts has now made it clear that all hearings should take place remotely where possible. Detailed updates are being issued regularly from judiciary providing information to professional Court users as to how to access remote hearings and how such hearings are to be conducted in compliance with the Family Procedure Rules. Care must of course be taken to ensure that litigation continues to be conducted fairly and with the usual safeguards, for example, the ability to record them for future reference. Applications, Court bundles and other documents should now be filed via email. Divorce petitions can be filed online either by lay clients themselves or by solicitors via an online portal. A new practice direction has been issued by the President of Tribunals dealing with flexible ways of working during the pandemic.

On 31 March, the first ever trial to be conducted via Skype took place seamlessly, ensuring that a Court of Protection case relating to life or death medical treatment could still be heard. The case involved five parties and evidence was taken from eleven witnesses. The judge, Mostyn J, commented that, “In the current national crisis, it must be expected that hearings will be conducted remotely in this way as a matter of routine practice.” Indeed, multiple hearings and important judicial business has taken place online – Sir Mark Hedley has used Zoom in order to complete the remaining eleven days of a fifteen day fact-finding hearing; an urgent second re-hearing and on 19 March the Lord Chief Justice hosted a meeting of 151 leadership judges using Skype for Business.

Civil Courts

Remote hearings are also being arranged in the Civil Courts. A new “Protocol Regarding Remote Hearings” has been published offering guidance applicable to all involved in the County Court, High Court and Court of Appeal (Civil Division).

In the High Court, both Skype and phone hearings are now in session. From a glance at the daily lists, there seems to be a preference for Skype. The County Court, on the other hand, is more typically holding telephone hearings. Telephone hearings have seen some teething issues; they use a software where the operator rings you (rather than you dialling in). If there are any issues (e.g. the call dropping), there is a wait whilst attempts are made to get you back on the call. It’s also not obvious that you have dropped out, so the hearing risks continuing on without you. One useful tip is to make sure you have the email address of your opponent ready.

Further to the new Protocol referred to earlier, parties are encouraged to prepare electronic bundles of documents and authorities for each remote hearing. These should contain only documents and authorities that are considered essential.

Complex and sensitive litigation is therefore being conducted, successfully, using new technologies. However, some Court users are clearly experiencing some issues with this and it is impossible to tell at present whether the quality of the hearings will be as high as if they had taken place in person. One wonders whether the use of remote hearings and online applications will continue when the pandemic subsides with a view to making the Court system more efficient (which many have been calling on for some time) or whether they will have simply been compromise in this time of crisis.

This article was published in Legal Week on 8th April 2020.