Business almost as usual – Court Hearings During the Coronavirus Outbreak

On 23 March 2020, the Lord Chief Justice, Lord Burnett of Maldon, directed that there will be no in-person hearings or trials across the UK court system for the time being, unless it is necessary and deemed safe to do so.

Wherever possible, mirroring much of the legal industry, hearings will be conducted remotely and some procedural matters will have to be decided on the papers. Judges and those responsible for enabling access to justice will be considered “key workers” for the purpose of the government’s allowances; but, the Lord Chief Justice was resolute that HMCTS is taking the current pandemic very seriously.

Some digital systems are already in place to allow for justice in the civil courts at a safe distance: the ce-file system is available in the Business and Property Courts and in the Queen’s Bench; the filing of e-bundles under Practice Direction 51O paragraph 13.2 is increasingly common practice; and most of us, at some point, have participated in a telephone hearing or had witnesses appear via video link.

Remote video hearings are less common, but the technology is there. ‘Early’ guidance published on 18 March indicated that for video hearings in the civil courts, Skype for Business has been activated on all staff and judicial laptops. As a participant in one of (if not the) first hearing in this brave new world, I can provide some insight into this new process and advise on what issues to look out for.

In our case, courts and offices were not yet closed, but our barrister and I were both self-isolating due to contact with those who might have been infected with Coronavirus. The barrister’s clerk liaised with the other parties and the court, suggesting a remote hearing for all parties under the circumstances. Following a ‘test’ of the system by parties and the judge at 4:00pm on the day before, parties received a calendar invite the following morning from the judge’s clerk with a link to the Skype for Business meeting to join – very much like the many other remote and virtual meetings we are all attending from our kitchen, studies, gardens and living rooms.

Trials

Lord Burnett’s order is clear with respect to jury trials: no new criminal trials are to start and any vulnerable jurors or jurors waiting to sit are to stay home. The guidance with respect to civil trials is less clear. Yesterday, 25 March, Hacon J in IPEC vacated a trial date due to the current health crisis. Although the Claimant suggested an alternate way forward mostly on the papers, for which they were commended, the judge held that there were features of common law trials, including access to the public and the ability of parties to call and cross examine witnesses, which could not be accommodated. Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd & Ors [2020] 3 WLUK 354

It seems unlikely that the UK courts will be able to develop a digital system to overcome these issues in the short term. Anecdotally, trial windows are being pushed back to the Autumn in order to prevent their having to be vacated and relisted, assuming that the courts will remain closed through the Summer.

Listing

A look at the court’s list of hearings for 26 March 2020 shows that most if not all of the hearings in the London High Court are now listed as remote hearings (by telephone or Skype) or as not requiring parties’ attendance. Judgments will be handed down without a hearing. Instead, they will be circulated by email to the parties and posted to www.Bailii.org on the same day, and deemed handed down at 10:30am on that day.

Obtaining a listing for a remote hearing requires some effort on behalf of the parties. The Remote Hearings Protocol published last week also encourages parties to be more “pro-active” in relation not only to the present hearing, but also to planning for future hearings (paras 10-11). The guidance indicates that where hearings have been listed remotely, the details of the hearing will be communicated directly to those affected.

As stated in the court’s guidance on telephone and video hearings, legal professionals might want to install Skype for Business on their computers for hearings going forward, although they also say that it is not necessary. The license can be expensive, however, and we were able to easily access the hearing through the web portal by clicking the link and joining as a guest.

Finally, where parties require an urgent listing, and would have normally appeared on the Urgent and Short Applications List, applications should be issued through ce-file in the usual way, with a request in the filing for an urgent listing. The Lord Chief Justice has indicated that priority will be given to hearings for breach of undertakings and injunctions.

Participation

The conduct of remote hearings by the technology currently available poses issues for the open justice principle. Where the judge initiates the video conference, and the invitation comes from their email address, there is the added issue of participation even by the parties themselves: it is the court’s protocol to provide a judge’s email address only to solicitors and counsel. To address this issue, the court has expanded the availability of Skype for Business to clerks and other employees of the court so that the clerks can send the invitation, when necessary.

To allow access to the public and press, the judge, clerk, or other court employee will project the remote hearing within the courtroom for those in attendance. Where that is not possible, the court may direct that the hearing be held in private where it is necessary to do so for the proper administration of justice, as indicated at paragraph 2 of Practice Direction 51Y, introduced yesterday, 25 March. Where practical, any such private hearing must be recorded (audio, unless the court directs video recording), which can be accessed by anyone on application to be reviewed in the court building (PD 51Y para 4).

In our case, the judge recorded the video and audio through Skype for Business and invited parties to write to his clerk requesting a copy, noting that the file would likely be large due to the video element. As he was sitting in the courtroom, he also advised requesting an audio recording of the hearing in the normal way. We queried the quality of such recording as he was the only one physically in the courtroom.

Where a media representative is able to access proceedings remotely, the hearing will be considered public (PD 51Y para 3). Although not stated in the Practice Direction or the court’s guidance, such access would only be possible by way of a direct invitation to the remote hearing from the court.  We think the media, students and other interested parties will be studying the daily list of hearings, and seeking guidance form the court office as to how they can listen in.

Communication

It would appear that the court is working on developing further technology which will allow parties and their solicitors to communicate with counsel through the conferencing system, but it is not in place yet. For our hearing, counsel and I relied on old fashioned technology: text messaging.

Court of Appeal

In the Court of Appeal, select hearings held in Court 71 are already streamed live through the court’s YouTube account, allowing remote attendance by the public and the press. With the Lord Chief Justice’s direction that hearings must be held remotely, it remains to be seen if hearings will continue in person. The guidance published on 19 March indicates that certain hearings, including for permission to appeal, reconsideration, and some final appeals, may be heard via telephone hearing.

Adjournment

Where a party or parties do not think a remote hearing is suitable and that the hearing must be adjourned, an application should be made and, under the circumstances, the application fee may be waived. The court has provided instructions here for how to apply for the fee waiver.

Updates

We will provide updates here as and when they arise. For regular operational updates this site is updated at 9am daily with operational summaries. Updates also will be posted on Twitter @HMCTSgovuk and @MoJGovUK.