COVID-19 has already caused significant disruption and uncertainty in the legal sector, but how is it going to impact on the operation of the courts and tribunals?
Lord Chancellor, Robert Buckland QC, in his official statement on 18 March 2020, stated that it was “essential” that courts remain open and continue to deliver justice. However, both the Lord Chancellor and the Lord Chief Justice agreed that steps should be taken to stop the spread of COVID-19, with the Lord Chief Justice stating “while a ‘business as usual’ scenario is unrealistic, it is of vital importance that the administration of justice does not grind to a halt."
Given the current situation, there is an immediate need for emergency legislation. Steps have already been taken in the criminal sector as no new trials will be starting in the Crown Court and there will be a delay of trials with a time estimate of longer than three days. This appears to suggest that short criminal trials and civil cases will be reviewed as the situation develops.
It has also been recommended that all legal practices adapt to ensure system functionality. Legislation is being drafted to expand the powers of the courts to utilise telephone, video-link or online in a wider range of hearings.
The use of video or audio hearings has already been standard practice in many jurisdictions.
In the criminal courts, the use of audio and video links is already set out in legislation and there are further arrangements in the proposed emergency legislation to expand the circumstances where modern technology can be used to conduct hearings.
Proposed legislation for all the sectors is to come into effect by the end of this month. The main proposals are to:
- Allow specific applications to take place by video;
- Expanding the use of video/audio hearings;
- Allowing the public to participate in audio and video hearings, in order to maintain open court principle.
Increased use of video and audio technology in the civil sector
Telephone hearings in the civil sector were introduced as early as 1999, during the Civil Justice Reforms following Lord Woolf’s review of the civil justice system in England and Wales. Following those reforms there has been further developments to cover a wider variety of hearings. The procedures for telephone hearings can be found in the Practice Direction supplementing Part 23 of the Civil Procedure Rules.
On 18 March 2020, HM Courts & Tribunals Service (HMCTS) published guidance proposing further use of current technology during the COVID-19 outbreak, encouraging not only HMCTS staff, but all individuals within legal sector, to maximise use of video and telephone hearings.
HMCTS is now collectively increasing the number of staff who are trained in the use of the audio-conferencing system and is successfully activating Skype for Businesses on all of their staff’s laptops. This took effect on 18 March 2020 and it is expected complete coverage will be achieved by the end of the week commencing 23 March 2020.
The Senior President of Tribunals is also in the process of preparing Practice Directions to maximise the use of remote hearings. This will allow courts to continue to function and remain open in all circumstances.
The decision to use telephone and video hearings is however a matter for individual judges. Current rules in the civil and family jurisdictions therefore apply. When considering whether the case is suitable for a telephone or video hearing, the judge must be fully satisfied that it is in the interest of justice for all parties involved. Main points to be considered include “the nature of the matters at stake during the hearing, any issues the use of video/audio technology may cause for participants and issues around public access and participation in the hearing.” Any changes to hearings will be communicated directly to those affected, usually by email and/or phone.
In practice, video hearings have been taking place already. Isadore Goldman was involved in one of the first insolvency cases in the High Court in London this week, where the hearing was conducted via Skype for Business. The process involved the Court inviting participants to a Skype call. Participants were required to provide their email addresses in advance of the hearing to the clerk to the Judge. It appears that Skype for Business may be the preferred platform for video hearings moving forward,
Video hearing rules
Although, there were some concerns regarding the use of video hearings amongst judges, in the view of recent developments around COVID-19, it is anticipated that within next few weeks, most, if not all of the hearings, will be conducted via either audio or video call. It is therefore recommended that firms and businesses prepare in advance to conduct audio or video hearings.
To join an audio or video hearing, all participants will need the right facilities (quiet room) and either a computer or phone with internet access, a microphone and if a video hearing, a webcam. The guidance published by HMCTS states that legal professionals who aim to join hearings remotely "may want to install Skype and test it on their own systems if they do not already have it."
All participants must follow the same rules as if they were attending court in person. This means no eating or smoking; only drink water; only use phone for contact with the hearing officer; follow the judge’s instructions and do not move away without the judge’s permission.
While, HMCTS’s approach to the recent outbreak appears to have been well thought-out, there are issues which could nevertheless potentially temper the efficiency of the hearings, such as:
- User vulnerability in accessing the hearing;
- Technology difficulties including poor audibility, visibility of the parties or access to documents;
- Poor Wi-Fi or internet connection; and
- Parties acting in a less formal manner than they would had they appeared in court.
On 17 March 2020 various updates have been made available regarding COVID-19 and the operation of courts. Although, guidance has been accessible regarding the conduct of hearings, there is still no mention on how the High Court and County Courts will deal with filing of documents in order to meet their deadlines.
That said, the UK Supreme Court (UKSC) and the Judicial Committee of the Privy Council (JCPC) announced temporary practices in relation to filing of documents over the coming weeks. Parties who choose not to travel to the court to file their documents can chose to either email their documents to UKSC Registry or JCPC Registry or contact the court and agree the means of filing. This can be achieved either by post, DX or courier. If one of these processes is used, the documents will be treated as having been filed on the next business day after the documents were sent/delivered.
The advice in relation to lower courts is still not available. The possible consequences of this is that members of legal profession will still have to travel to courts to meet time limits. The Court of Appeal (Civil Division) have, however, announced a temporary closure of the counter, taking effect from 18 of March 2020. A drop box is currently available for filing. A number of counters have also been closed in Queen’s Bench Division and practitioners have been advised to use the nearby counters for filing.
There is also no further guidance for the litigation sector, with regard to limitation deadlines for issuing proceedings. This is however currently being reviewed by the Law Society and HMCTS, with the possibility of deadlines either automatically being suspended or extended for two or three months.
Taking all of this into account, until further guidance is published, litigators are required to follow the current court rules. The parties should also bear in mind the importance of the provisions of the overriding objective and that unnecessary disputes over procedural matters are highly discouraged.
Isadore Goldman recognises the importance, at times such as this, of being able to support our clients. As face to face meetings are not recommended, we have put measures in place to enable us to provide continued support for our clients. We are operating remotely, but have capability to respond quickly, be contacted out-of hours, organise video meetings, conference calls and deal with Court hearings.
In the event that you need assistance, you can reach us on our usual numbers. For more contact information please visit https://www.isadoregoldman.com/people/.
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