EDITOR’S NOTE: We would like to hear from any members who have something to say about remote hearings and how they have worked in practice. Please send any contributions, long or short, to me david.chaplin@scl.org.
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In the first week of February 2020, I commiserated with a colleague about having to call the Registry Office in Manchester to check whether our latest notice had made it onto the court file. I wished this particular court had digitised our file but, as we filed proceedings before the court upgraded to e-filing, we were doomed to paper-based inefficiency.
On 23 March 2020, the country went into lockdown. The same court introduced phone and video hearings and measures to “remove the need to contact us by phone, email or post.” Of course this was not unique. It was estimated that 4 days after lockdown, 70% of all court and tribunal hearings in England and Wales (that went ahead, that is) involved the use of audio or video technology. By 5 weeks, the estimate was 90%.
In response to so much change in so little time, the Civil Justice Council this month announced a “rapid consultation” on the impact of those swift changes on the civil justice system.
A quick scroll down the home page of Remote Courts Worldwide – a joint project of HMCTS, Society for Computers and Law, the UK LawTech Delivery Panel and led by Professor Richard Susskind – is all it takes to observe that such rapid change in how courts deliver services is occurring on a truly global scale.
Having attended two online hearings, here are my thoughts on how they worked (and didn’t work) and whether the future of dispute resolution in the courts of England and Wales might just be upon us.
My first encounters with online hearings
Hearing on specific disclosure in the Technology and Construction Court on 27 March
Seeing the Honourable Mrs Justice O’Farrell appear on my smart phone for an online hearing gave me the sense of excitement I had when I first sent an instant message over the now-defunct MSN Messenger in the late 1990s. I messaged my senior colleague via our internal Skye for Business, “My goodness this is strange”. He replied, “It’s the future!”
This hearing went remarkably well. Counsel “appeared” on video while their instructors did not. Electronic messaging replaced hurried handing-forward of scribbled notes to counsel. Mountains of paper in lever arch files were replaced by an electronic portal provided by the claimant’s solicitors which held all of the relevant documents. The defendants’ solicitors saved a trip from Birmingham to the Rolls Building in London.
Matters of substance were dealt with smoothly, too. The parties agreed to exclude SMS messages and hard/manuscript documents from the scope of the specific disclosure Order because collecting those would be impossible while working remotely and/or require individuals to meet to hand over their mobile devices for imaging. The Court approved of this sensible approach.
The Court’s decision on the specific disclosure application was reported on Westlaw. A law reporter dialled into the hearing, having obtained the Judge’s permission in advance. One aspect of the hearing that was not reported is that the Judge recommended the parties discuss logistics for their week-long trial to be held remotely in October 2020. With our Prime Minister having just declared the UK “past the peak” of the disease, this may seem, in retrospect, to have been overly pessimistic. But the parties have embraced the recommendation and are proactively investigating their options.
Application for a worldwide freezing injunction in the Interim Applications List (Chancery) on 24 April
Just shy of a month later, I found myself in another hearing on Skype for Business. This hearing was characterised by the same patience as was afforded the parties at the earlier hearing but there were connection issues that meant the hearing took longer than it otherwise might have.
The Chancery Division have, until now, insisted on receiving a hard copy of all documents, including hearing bundles and counsel’s last-minute, written submissions. We were grateful when the Judge’s clerk said we were relieved of this obligation for our Skype hearing and that the Judge would work with our electronic bundle. We had, after all, already printed affidavits running to hundreds of pages on one of the team’s family inkjet printer!
Unfortunately, in this case, justice was a little more open than it ought to have been. As is usual for applications like this, made without notice to the other party, at the start of the hearing the Judge directed that it be “in private”. Being an Applications List, various litigants re-entered the “court room” before their matter was to be heard and had to be “removed” by the Judge’s clerk when they popped up on the Skype call. The Court has now developed a solution to this issue.
The new norm?
Would I mind if online hearings became the default option? Certainly not for interim applications in commercial matters like the ones I attended.
My answer would be the same for most commercial trials. It was interesting to hear, at a webinar given on 6 April, the views of Ali Malek QC and David Quest QC who appeared in the first such trial in the Commercial Court. The Judge had refused to put the hearing off until the Autumn, saying on 19 March, “The Court has to be optimistic, rather than pessimistic. It is the duty of all of the parties to seek to co-operate to ensure that a remote hearing is possible.” As it turned out, the Court’s optimism was well-placed. As noted in the Judgment delivered on 22 April 2020, “The judge, counsel and solicitors participated from their homes by video link and the witnesses did so from their homes or offices abroad in Kazakhstan, Belgium and the USA … without any technical hitch and all parties co-operated to ensure that the hearing took place efficiently and fairly.”
I suspect, however, that I was fortunate that my first encounters with online hearings were such as to fill me with excitement, confidence and relief about how efficient and less expensive justice can be delivered now and in the future. My experience is but a very narrow sample. Already others, including colleagues at CMS, have not been so lucky. I have heard stories of judges failing to dial in to the hearing at all; clients needing an interpreter but not being able to have one attend the remote hearing; those attending the hearing finding it difficult to communicate openly between themselves, for instance to give instructions to counsel; and participants with carer responsibilities having difficulty attending the hearing from home.
There are also court hearings where the use of a video hearing seems, at least for now, unthinkable. On 23 March, the Lord Chief Justice quite rightly postponed all new jury trials.
Although causing chaos for the under-prepared, the COVID-19 crisis has jolted the justice system into the 21st century overnight. The recent prediction of Lord Hodge, Deputy President of the Supreme Court –“Perhaps, in future, we might all be contributing remotely to hearings by means of such technology.” – has been overtaken by reality. The crisis has, for better or for worse, brought us closer to the day where online judging becomes the new norm. For now, we have a unique opportunity, and responsibility, to road-test what a few weeks ago seemed futuristic.
Leah Grolman, Associate at CMS Cameron McKenna Nabarro Olswang LLP
