Achieving justice in a Covid-19 environment – Ireland

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Karyn Harty
McCann FitzGerald, Ireland
karyn.harty@mccannfitzgerald.com

As in many other jurisdictions, the Covid-19 pandemic presented Ireland’s justice system with an immediate, extraordinary challenge – how to continue to administer justice without endangering the health of those involved. If the stages of grief are anything by way of analogy, it is fair to say that the courts moved swiftly from ‘denial’ to ‘depression’ then onto  ‘acceptance’. The pandemic forced much more rapid adoption of innovation than might otherwise have been possible and remote hearings are now commonly being used in a courts system which previously had no experience of the format for full hearings. As the Government will this week formally place remote hearings on a legislative footing,^[1] it is clear that they will remain a feature of the court system in the long term.

A hybrid approach

Ireland entered lockdown on 12 March 2020. The following day, the presidents of the various courts in Ireland met and agreed as a temporary measure that courts would finish cases already at hearing and work to identify matters that urgently required hearing. Social distancing measures were introduced as the impact of the pandemic worsened but the vast majority of cases that were scheduled for hearing were adjourned. The Chief Justice moved quickly to pilot the court’s existing virtual meeting room (VMR) technology, previously used for taking evidence from remote witnesses, for more general use. On 20 April, the Supreme Court and Court of Appeal heard their first cases by VMR, with guidance on such hearings issued by the Chief Justice on 23 April. Initially, the range of cases deemed suitable for VMR hearing was limited. A number of judges have continued to sit for physical hearings with appropriate social distancing measures, which have been constantly updated and include restricting numbers in the court room and use of face coverings.

As adoption of the VMR format has increased, the range of cases deemed suitable for remote hearing has also widened. At the time of writing, the courts are operating a mixture of VMR hearings, physical hearings and so-called ‘hybrid’ hearings, where participants can be physically present in the court room or join by VMR. As matters stand, all civil cases involving witness evidence are still being adjourned and the pandemic has caused a significant backlog of cases.

As the lockdown enters a new phase and new arrangements – including the opening of more courtrooms – are enabling a greater number of cases to proceed to hearing, the courts are examining the scope to hear matters involving witness evidence. A pilot hearing has recently been staged in the Commercial Court to assess the suitability of the VMR format for taking evidence remotely.

Denial

The pandemic had an almost immediate shutdown effect on most aspects of the administration of justice. The vast majority of offices were closed due to the lockdown and practitioners have worked remotely, many also home-schooling children due to school closures. As offices begin to reopen, Covid-19 continues to significantly impact the justice system, with many barristers effectively unable to earn for a protracted period and clients severely affected by cases being delayed.

In the initial weeks of lockdown, practitioners began to explore the scope for virtual hearings and lobby for their introduction. There were widespread concerns that VMR hearings would be a wholly inadequate means of administering justice but it was noted that remote hearings had already begun to take place in London, including full commercial court actions involving fact and expert witnesses. The fact that continuing with physical hearings on any meaningful scale was not going to be feasible was soon recognised by the judiciary, and the speed of adoption of VMR hearings since April has been commendable. In a system which did not have the experience of telephone hearings (for example) that are commonly used in other jurisdictions, and which is heavily focused on oral hearings, this has been a welcome development which has helped to keep the system moving – albeit at a significantly reduced scale.

Depression

VMR hearings are not without their challenges. The Pexip system used by the Irish Court Service has more limited features than some other platforms on the market, but it benefits from good security and is functional and easy to use. Problems have tended to derive more from individuals’ security and device settings, with firewalls creating problems on some occasions. Connectivity is a recurring problem – if a participant’s broadband connection is poor, it can significantly disrupt a hearing. Bad weather can also get in the way of connectivity, but the Courts Service registrars are usually able to offer a solution such as a dial-in for participants who are having difficulties with video connection.

Everyone is by now familiar with the risks involved in managing virtual meetings and stories abound of practitioners who failed to ‘mute’ while taking phone calls and incursions by children, pets and spouses during VMR hearings. These risks are ever-present at VMR hearings for those taking part from home.

The most common practical issue is undoubtedly participants failing to ‘mute’ their microphone when not addressing the court, as even the slightest noise results in them being shown on the main screen as the ‘speaker’ during the hearing. Advocates find it challenging to see themselves on the screen when they are addressing the court, rather than viewing the judge or judges that they are addressing.

Acceptance

In the early days of VMR hearings, the courts tended to indulge parties who declined the option of a VMR hearing. Now the court is more likely to stipulate that a VMR hearing will take place when it deems the format suitable, and the Court of Appeal will now also determine certain applications on the papers, without the need for an oral hearing. Virtually all appeal court hearings are now taking place by VMR and practitioners are adapting to the limitations of the format. Some judges who were sceptical of the technology early on have become enthusiastic adopters. One significant advantage in the High Court is that, whereas judges previously would have only been assigned to cases on the morning of the hearing, they now get the papers in advance and have an opportunity to read them fully before the commencement of the hearing.

The courts have issued a series of practice directions setting out requirements for appearance at VMR hearings, filing e-bundles and lodging documents at court. The Supreme Court has also streamlined its procedures to require the e-filing of a statement of case before the hearing, to narrow the points required to be considered at the hearing. One point of frustration for practitioners and their clients is that  judges still often require hard copy bundles also to be filed despite e-filing procedures, which significantly increases costs and can be practically very challenging for those who are working remotely.

The Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020, which is shortly expected to pass into law, makes specific provision for the court to deal with matters by remote hearing and for the filing of documents electronically. This gives the courts wide discretion to make directions for the remote hearing of civil actions and the increased use of video-link evidence in criminal matters. We are likely to see greater numbers of VMR hearings once the courts resume after the summer recess and it is hoped that witness hearings will be able to resume later this year.

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