The UK government's emergency legislation to deal with the Covid-19 pandemic included provisions to rapidly expand the use of remote hearings, in a bid to reduce the risk of spreading infection. Even after the crisis has subsided, this may become the new normal for civil justice in England and Wales.
The default position now for the civil courts is that hearings should be conducted with one or more or all participants attending remotely. Indeed, under the current lockdown restrictions, it is difficult to see how, for example, witnesses attending court could claim to fall within one of the four limited reasons for leaving home. Going even further in the criminal courts, all jury trials have now been temporarily suspended.
In the first of a series of articles on the impact that coronavirus is having on dispute resolution, we examine below how things will work in practice.
Civil courts and tribunals
The HM Courts & Tribunals Service has activated Skype for Business on all staff and judicial laptops and is carrying out training and testing with a view to using the technology at scale as soon as possible.
On 22 March 2020, guidance was published on how to conduct remote hearings. Where hearings are to be in public, the court might be able to live stream the hearing. This could potentially widen the audience and increase publicity around a case.
The hearing might also be recorded: the court might use its usual recording system or services such as Skype or Zoom. The parties will not be allowed to make their own recordings though. If the court allows it, privately paid-for transcribers can be used.
Parties will be offered a choice of using alternatives such as Skype, Zoom, or a telephone call or adjournment (if a remote hearing is not possible and the length of the hearing and number of parties make it undesirable to go ahead at this time).
The position is the same in tribunals, although we are aware that there also appears to be a push there towards applications being heard on paper.
Unlike in the civil courts, jury trials are not a viable option for remote access. This move is likely to place considerable pressure on the criminal justice system which is already subject to significant delays. Only last month, the Lord Chief Justice called for crown courts to sit more often to deal with the backlog in cases.
What impact might the current crisis have on the future administration of justice?
It is, of course, too early to say how long the crisis will continue and what impact this entirely new way of working (ushered in at very short notice) might have on the way our courts operate in the long term. Even before the current situation, court buildings were being sold by the Ministry of Justice as part of its £1bn modernisation programme to move to video hearings and online mechanisms (some 126 court premises were sold in England and Wales between 2010 and 2018). This trend may well be accelerated by the necessity to ensure that courts and tribunals are able to conduct much of their business remotely.
Whilst we are highly unlikely to see an end to jury trials, in person hearings may be replaced with a presumption of remote hearings in the civil courts, particularly where parties and witnesses are located abroad (for example, around 75% of the Commercial Court's business relates to property or events outside the UK). Courts around the world are being forced to make similar significant changes to their practices and so we might see a global change in the way they operate in future.