The Covid-19 pandemic poses enormous challenges to the functioning of every aspect of society, including civil litigation. The courts want to ensure civil justice, but given the severe restriction on movement and gatherings, for all but a few cases this means conducting hearings remotely or, if necessary, adjourning them.
The courts provided guidance regarding remote hearings (the protocol) on 20 March but significant challenges remain. The protocol makes clear that remote hearings should be used when possible for all kinds of hearing, including trials. It applies to county courts, the High Court and Court of Appeal (CoA) (the Supreme Court has also issued guidance and is operating entirely remotely).
The Rolls Building cause list shows how extensively this has already been adopted, with multiple references to hearings via telephone and Skype, with no hearings taking place in a physical court despite them remaining open. The Civil Procedure Rules already contain provisions on remote telephone and video hearings (see CPR 23A and annex 3 of PD32), although some provisions are unlikely to apply in the current circumstances, and a short new PD51Y has been made concerning telephone and audio hearings during the pandemic.
Entirely remote hearings are permitted as the court may sit anywhere (section 71(1) of the Senior Courts Act 1981 for the High Court and section 57 for the CoA) and already occur with urgent out-of-hours hearings. But two legal issues need addressing: open justice and recording hearings.
Open justice requires that hearings are public. This is enshrined in Article 6 of the European Convention on Human Rights and is required by CPR 39.2. Both permit only limited exceptions. A potential consequence of remote hearings is that only the participants may have access due to practical or technological limitations. The protocol requires this to be addressed beforehand. So far as possible, remote hearings should be public by being relayed to an open court, live-streamed or allowing journalists to log-on. PD51Y makes clear a remote hearing is public if journalists can access it. At present this option is being pursued in practice – the Rolls Building’s cause list provides an email address for journalists to access remote hearings. The protocol also points to the provision in CPR 39.2(3)(g). This allows a court to hold a private hearing if ‘necessary, to secure the proper administration of justice’, and the PD51Y provides that during the pandemic, if it is not practical, to broadcast a remote hearing or give access to journalists, the court may order a private hearing on that basis. Any residual human rights concerns about public hearings are likely to be dispelled by the countervailing unqualified human rights requirement in Article 2 to protect the right to human life.
The second legal issue concerns the requirement in CPR 39.9 to record hearings unless a judge directs otherwise. The protocol requires this to be considered beforehand and either for the hearing to be recorded or for an order to be made dispensing with the requirement. Parties must not record the hearing. This should be undertaken by the service provider, transcribers or the court. Indeed, the emergency Coronavirus Act makes unauthorised recording a criminal offence.
The protocol provides needed guidance as to how remote hearings should be conducted. Parties are encouraged to be proactive in addressing issues, but the court will also propose whether a hearing should be adjourned, take place in court or proceed remotely, and if so, how. If the parties are not content with the proposals they can make written submissions and the judge, who should be allocated to hearings at an early stage, will determine the issues and may give directions. A short remote CMC may be used and can be valuable in complex cases to allow issues to be fully addressed. A remote hearing can be done with any practical technology – currently phone and Skype are the most common options in the Rolls Building. This reflects the technology readily available to the court, which has hurriedly facilitated the use of Skype. This both allows judges to be remote and can be installed on all court laptops, whereas the court’s pre-existing video-link is fitted in too few court rooms to be a practical solution.
There remain practical issues that parties, lawyers and the court will have to overcome to make remote hearings workable. Many concern the mechanics of hearings. The court, parties and witnesses will need to use electronic bundles. These need to be produced (probably remotely) and supplied. The participants will also need to juggle viewing those and using Skype simultaneously – possibly using one screen. The parties, their solicitors, and counsel must find ways to communicate in private during a hearing, potentially using WhatsApp in place of sticky notes. Witnesses must be sworn in and give evidence remotely, without the normal supervision of giving evidence by video.
There are solutions and new practices will be developed. In the meantime, hearings may be longer which will need to be reflected in estimates. The efficiency of hearings will be improved by providing bundles containing only the necessary documents, allowing more reading time for judges with focused reading lists and possibly fuller written submissions. Importantly, pre-hearing timetables should allow sufficient time before a hearing for parties and the courts to address the practical challenges.
Anyone who has taken part in a phone or video hearing will say they do not compare to a court hearing. The profession and the courts will have to put aside these concerns and embrace using technology for hearings in a way scarcely conceivable in civil litigation until now.
One must hope that as the pandemic forces all participants in civil litigation to embrace technological solutions and adopt new practices, that mindset will outlast the crisis and be a spur to continued investment in the technologically advanced court system we need for the future.
Nicholas Heaton is a partner and Susanne Buergi an associate at Hogan Lovells. They are members of the LSLA committee and junior committee respectively