A leading PI lawyer has expressed her concerns that so-called hybrid hearings – an emerging feature of post-lockdown justice – are creating an unfair playing field for litigants dialling in remotely.
Sarah Crowther QC, vice-chair of the Personal Injury Bar Association, said the system of having some lawyers and litigants appear in person while others appear by video link may be embraced too quickly without considering the consequences.
Speaking at the Expert Witness Institute annual conference earlier this month, Crowther, from Outer Temple Chambers, said that while hybrid hearings have been regarded as a success in the Court of Appeal, the same cannot always be said for the county court or magistrates court.
She later told the Gazette: ‘There is a real risk that the lawyers and courts are so pleased to be able to have a hearing at all that they overlook fairness issues. I don’t just mean abuse of process (eg aides memoires or witnesses being coached) but more that litigants in person don’t have the technology and it inhibits the ability of the judge to see the non verbal signs of confusion stress or lack of engagement.
‘I think many people lose the fundamental sense of having had a fair hearing - which after all is what we’re there for.’
Crowther’s misgivings echo the views of solicitors responding to a Law Society survey, who said last week that the majority of vulnerable clients were not able to participate effectively in remote hearings. People with mental health issues, learning disabilities and language barriers are believed to be at a particular disadvantage, as well as litigants in person.
Hybrid hearings have become a regular feature of court proceedings since the coronavirus pandemic forced many buildings to close or operate with limited capacity. They have been acknowledged as allowing cases to be heard where one participant is unable or unwilling to appear in person, particularly where they have been shielding during lockdown.
With restrictions likely to remain in place for months, hybrid hearings are likely to become more common, as well as hearings held entirely remotely. It is believed that the government sees virtual hearings as a vital element in tackling the backlog of cases across civil, family and criminal justice.
There is also growing case law concerning hybrid hearings, most notably the Court of Appeal in C (Children: Covid-19: Representation), where Lord Justice Peter Jackson said that this type of hearing did not threaten any breach of a mother’s right to a fair hearing. He stressed that ‘perfection’ in how complex trials were handled was not always possible, and a difference in the way parties were represented did not amount to an inequality of arms.