The leading judges of England and Wales have revealed that measures are being put in place to silence unruly litigants in remote hearings.
Updated guidance published this week by the lord chief justice Lord Burnett of Maldon, master of the rolls Sir Terence Etherton and Sir Andrew McFarlane, president of the family division, outlines how the courts have responded to the coronavirus lockdown, and the experience of remote working to date.
Across all jurisdictions, around 40% of hearings have continued, some in the traditional way and others by phone, video or the internet. For obvious reasons, they say, the ‘overwhelming majority’ of those completed have been shorter hearings without difficult evidence or high emotion.
The judges say they encouraged colleagues to recognise that doing as much as possible remotely did not mean trying to do everything remotely. They also reveal that IT specialists have been asked to explore whether there is a facility for ‘people who misbehave’ to be muted by the presiding judge.
The guidance states: ‘It is important that the listing of cases, which is a matter for judges, takes account of the reality that long hours in front of a screen or on the phone concentrating hard are more tiring than sitting in a court room with all the participants present.
‘That is an experience reported by teachers who gave remote lessons at the end of the term. No judge should be expected to endure abuse on the phone or laptop.’
The judges say the collective response of the judiciary to dealing with cases using technology has been ‘remarkable’, but the coronavirus crisis did not mean that remote hearings are appropriate in all cases.
It remains the starting point that a remote hearing is unlikely to be appropriate for most cases involving the welfare of children before the family court.
The guidance says that in general if all parties oppose a remotely conducted final hearing, this is a ‘very powerful factor’ in not proceeding with one. Equally, if all parties want to go ahead remotely, this is not necessarily a ‘green light’ to conduct a hearing in this way.
Video or Skype hearings are likely to be more effective than by telephone, and parties should be told ‘in plain terms’ at the start of the hearing they should behave as if it is a normal hearing.
In civil cases, listing remains a matter for the judge, and they should not feel under any pressure to list a certain number of remote hearings every day. Neither should they expect to undertake the same full list remotely as they would have done in person.
Meanwhile, a new practice direction published this week allows judges to draw directions orders for cases worth up to £10,000 in the Online Civil Money Claims pilot scheme. The limit was previously £1,000.
Although the change has been expedited in support of the Covid-19 response, it is part of the ongoing process of building the OCMS process and as such remains in place until 30 November, 2021.