Remote hearings in the COVID-19 era: another new normal?

The outbreak of the 2019 novel coronavirus disease (COVID-19) has affected all aspects of daily life. One area where its effects have been felt keenly is in English court proceedings, where the judiciary has responded to the unprecedented challenges posed by the pandemic by promoting, and providing guidance on, remote hearings and trials.

It is clear that the English courts have been as quick and nimble as any organisation in adapting to daily life in the face of the COVID-19 pandemic and, certainly, the overriding message to all court users has been that it is very much business as usual despite significant logistical challenges. It will be interesting to see whether they look to abandon remote hearings as soon as they are able or whether this “new normal” may herald a more permanent change in the way that the courts operate.

A rapidly evolving situation

On 17 March 2020, in response to the government putting in place more stringent measures in response to COVID-19, the Lord Chief Justice released a statement acknowledging the impact that COVID-19 would have on the court system and the steps that had to be taken to address this. He emphasised that, while it would not be business as usual in any jurisdiction, it was of vital importance that the administration of justice did not grind to a halt. There was an urgent need to increase immediately the use of telephone and video technology to hold remote hearings where possible.

Two days later, the Lord Chief Justice issued a strongly worded message to the judiciary: it was inevitable that final hearings and hearings with contested evidence would be conducted using technology; otherwise access to justice would become a mirage, and backlogs and delays would reach an intolerable level if court business was simply adjourned (www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/).

Hot on the heels of this announcement came three publications designed to facilitate the change in working. The first, the new Coronavirus Act 2020 (2020 Act), came into force on 25 March 2020, containing provisions to expand the availability of video and audio links in court proceedings and allow a wider range of proceedings to be carried out in this way (see News brief “Coronavirus Act 2020: implications for businesses”).

On the same day, Practice Direction (PD) 51Y took effect. PD 51Y complements the 2020 Act, making provision for remote hearings to take place in private where it is not practical for the hearing to be broadcast in a court building and stating that this is consistent with the power to derogate from the principle of open justice.

The next day, on 26 March 2020, the senior judiciary released a protocol on remote hearings (the protocol) (www.judiciary.uk/publications/civil-court-guidance-on-how-to-conduct-remote-hearings/). The protocol expressly states that there is to be flexibility in its application. It contains guidance on the conduct of remote hearings, while not disturbing the standard position in the Civil Procedure Rules that, ultimately, this will always be at the discretion of the judge. It also sets out a number of steps that should be taken: when a hearing is fixed, including identifying the remote communication method; and at the hearing itself, with a focus on making remote hearings open to the public where possible and ensuring that they are recorded.

A message from the Lord Chief Justice, together with the Master of the Rolls and President of the Family Division, was published on 9 April 2020 (www.judiciary.uk/wp-content/uploads/2020/04/Message-to-CJJ-and-DJJ-9-April-2020.pdf). This notes that if all parties oppose a remote final hearing, this is a very powerful reason not to proceed with it; but where a final hearing is conducted on the basis of submissions alone and no evidence, it may be held remotely. The message also observes that video hearings are likely to be more effective than telephone hearings.

When it comes to the more technical aspects of these hearings, HM Courts & Tribunals Service (HMCTS) has released detailed guidance (www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak). This guidance addresses how hearings will be set up and how to join them, including use of the courts’ own cloud video platform, which is being rolled out alongside existing platforms such as Skype for Business.

The new rules in practice

One look at the cause lists for the courts makes it apparent that the judiciary has heeded the Lord Chief Justice’s call, with a range of hearings listed to take place remotely and instructions on how the media may attend. Data released by HMCTS also bears this out. At the end of March 2020, just over 500 hearings had been conducted by audio or video technology. Within a month, the number of these hearings had reached almost 3,000.

In hearings held since the lockdown, the courts have demonstrated both a willingness to adapt to the new ways of working and a robust attitude towards requests for extensions of time and adjournments.

In Re Blackfriars Ltd, a claim valued at over £250 million and involving four live factual witnesses and 13 expert witnesses, the High Court refused the claimant liquidators’ application to adjourn the five-week trial, due to begin in early June 2020 ([2020] EWHC 845 (Ch)) (see box “Time extensions and adjournments”). While not underestimating the technological and practical challenges, and leaving open the possibility of a split trial if the evidence pointed that way, the court encouraged the parties to co-operate and explore solutions. These included investigating remote trial platforms and document handling systems.

Meanwhile in Muncipio De Mariana v BHP Group Plc and others, said to be the largest class action in history, the court conducted a careful balancing exercise ([2020] EWHC 928 (TCC); see “COVID-19: time extensions and remote hearings”, Bulletin, Dispute resolution, this issue). In view of the circumstances of the case, justice required that the defendants’ request for an extension of time to gather evidence further to a jurisdictional challenge should be allowed. This was because it would take significantly longer than was provided for in the timetable. However, the court rejected the defendants’ request to adjourn the hearing until the autumn, directing instead that it would be relisted for July 2020 and held remotely, if necessary at that stage.

Muncipio sets out useful guidance on the correct approach to adjournment applications. While justice delayed is justice denied, the court observed that there will still be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote hearing. On the question of time extensions, the court said that these should be kept to the minimum that is realistically practicable; the prompt administration of justice and compliance with court orders remains of great importance even in circumstances of a pandemic. Similar to the court in Blackfriars, it encouraged legal practitioners to use imaginative and innovative methods of working and to acquire the new skills needed for the effective use of remote technology.

Naturally, as the court in Muncipio recognised, this will have its limits. In Conversant Licensing SARL v Huawei Technologies Co Ltd and others, the High Court rejected the claimant’s proposal to conduct the trial of a patent dispute entirely on the papers, ordering instead an adjournment ([2020] EWHC 741 (Pat)). However, the court did commend the claimant for suggesting an alternative way forward and encouraged parties to make practical and imaginative proposals.

Practical issues

Remote trials represent a new way of working for all concerned. Inevitably, the process and technology will have teething issues and raise practical challenges. Robust testing of remote trial platforms, document management systems and connectivity for all participants will be essential steps in the preparation for remote hearings and trials. The court in Re Blackfriars went so far as to note the recommended bandwidth cited in the Family Court Guide on remote access and stated that the issue of broadband connection and bandwidth is an absolutely essential enquiry.

The protocol encourages the use of electronic bundles of documents for hearings. The preparation of bundles by this means is not new: PD 51O on Electronic Working contains provisions on electronic bundles and the Supreme Court already had detailed stipulations on their preparation (www.supremecourt.uk/procedures/practice-direction-14.html). So far, the Queen’s Bench Division has produced more detailed guidance, largely reflecting the Supreme Court’s requirements, but the position for other courts will need to be confirmed for each case (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878791/QB_Masters_Hearings_-_court_user_guidance.pdf).

Meanwhile, the provision of lengthy bundles presents its only practical challenge. The protocol states that the bundles must be filed on the courts’ CE-file, if available, or sent to the court by link to an online data room, email or delivered to the court on a USB stick. Given the file limit on the CE File and firms’ own likely limits on email attachments, the use of secure file-sharing sites may be the most effective way forward but this will need to be confirmed with the court on a case-by-case basis.

Time extensions and adjournments

Practice Direction (PD) 51ZA, which took effect on 2 April 2020, expands parties’ ability to agree extensions of time between themselves without recourse to the courts.

Civil Procedure Rule 3.8(4) contains what is known as a “buffer order”. This allows parties to agree extensions of time between them, without recourse to the court, of up to 28 days in circumstances where otherwise a sanction would apply to a failure to comply with a specified time limit. This is subject to the proviso that agreement is reached in writing beforehand and that any extension does not put at risk a hearing date. PD 51ZA modifies this 28-day period, giving parties the ability to agree extensions of up to 56 days, subject to the same conditions.

This article was first published on Practical Law