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One of the uncertainties which loomed large over the legal profession in the early days of the Covid-19 outbreak was how the busy courts of England and Wales would react to the impending crisis. Would litigation grind to a halt until the health emergency had abated or could pragmatic solutions be found to permit cases to progress?
The civil courts in England and Wales took the ambitious approach of seeking to maintain the momentum of litigation as the pandemic took hold. The approach adopted reflected the pervasive principle that ‘justice delayed is justice denied’.
The English civil courts already have extensive powers of case management which provide that the court can hold a hearing and receive evidence by telephone, or by using any other method of direct oral communication, and that witnesses can give evidence to the court from a remote location (usually abroad) via video link or other means.
By 17 March 2020, being very aware of the magnitude of coronavirus and its potential impact on the continued administration of justice, the Lord Chief Justice, Lord Burnett of Maldon, issued his first update on the subject, in which he said, ‘It is of vital importance that the administration of justice does not grind to a halt’ and ‘Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible’. He went on to note, on 19 March 2020, that as a vital public service the courts were obliged to continue functioning, albeit it would ‘not be business as usual’. The litigation landscape would have to change significantly to accommodate the challenges posed, and the adaptations would have to be made practically overnight.
On 23 March 2020, Prime Minister Boris Johnson instituted what has become known as the national lockdown requiring all persons to stay at home save for very limited purposes. This resulted in emergency legislation being enacted late on 25 March 2020 – namely the Coronavirus Act 2020 – which insofar as concerns the continuation of court business, was consistent with the Lord Chief Justice’s earlier guidance. Essentially, section 55 of the Act permits the broadcasting of proceedings conducted wholly by video or telephone.
Various other protocols and guidance were subsequently issued and temporary changes made to parts of the Civil Procedure Rules (CPR). The result was that the English civil courts have embraced the challenges posed by remote working and defied the odds to ensure the continued administration of justice where possible.
The court’s immediate reluctance to agree to adjournments unless absolutely necessary was seen in the 19 March 2020 ruling of Mr Justice Teare, presiding in the High Court in the matter of National Bank of Kazakhstan & Another v The Bank of New York Mellon & Ors  EWHC 916 (Comm).
Solicitors for the claimants were directed by Mr Justice Teare to cooperate with the defendants’ solicitors to organise the practicalities for the first fully virtual trial in the English Commercial Court to be heard the following week (on 26 March 2020). The challenges included:
An important concern, and indeed one which has been raised in respect of remote hearings generally, is the integrity of the witness evidence. This was addressed by ensuring that all witnesses were in receipt of hard copies of or had electronic access to all the relevant documents, and that the cameras were positioned to ensure that it was clear to the judge and the advocates that the witness were not being assisted while giving testimony. Another consideration when arranging for witness evidence to be given remotely and from another jurisdiction is the need to ensure that there are no restrictions in those jurisdictions on witnesses giving oral evidence via video link in English court proceedings. Local legal advice should be sought on the existence (or otherwise) of any such restrictions before the witnesses gives their evidence.
A further practical consideration in all remote hearings is how members of a party’s legal team communicate with one another and with their client(s) during the course of the hearing. A convenient method deployed in the National Bank of Kazakhstan case was the use of WhatsApp groups which allowed counsel and instructing solicitors to send notes to each other and for the client(s) to comment in real-time, much as they would in a conventional court setting.
The experience of conducting the first fully virtual trial in the English Commercial Court was that the responsibility of setting it up at short notice was placed firmly on the parties and involved a certain amount of trial and error. But with over 85 per cent of all civil court hearings having proceeded as remote hearings in April 2020 (with those statistics being continued to date), the process of arranging and holding remote hearings is now a well-oiled machine, with the courts’ administrative staff themselves (rather than the parties) selecting the video communication platform to be used and making all the necessary arrangements for the hearing.
The English courts have shown a keenness to embrace technology while accepting that there may be hurdles and unforeseen difficulties which require the parties to be flexible and collaborative. The result has been that it has very much been ‘business as usual; for the most part in the English civil courts from the very start of the lockdown – and indeed since then, with the continued need for social distancing.
During the period of disruption caused by Covid-19, as noted above, substantive hearings such as trials have proceeded by way of remote hearings, which has meant a much larger role for technology and third-party software providers. This transition is underpinned by CPR rule 1.4 (1), which provides that the courts are duty bound to make use of technology and give directions which ensure cases proceed quickly and efficiently without the need for the parties to attend court in person.
There is a plethora of technology providers who have stepped in to create virtual courtrooms where litigators, their clients, witnesses and judges have been digitally united, often from across the globe. The video communication platforms offered by the likes of Zoom, Microsoft Team, Starleaf, Skype for Business and Webex were previously little considered by litigation lawyers or by the judiciary and the courts’ administrative staff, but are now at the forefront of planning for a (now remote) hearing.
The preparation and sharing of hearing documents has predominantly become digital and moved online. Litigators who are already accustomed to using ‘data rooms’ to transfer large volumes of documents have found the court increasingly willing to accept the filing of electronic bundles in this manner: there is now formal guidance which must be followed when preparing and submitting e-bundles to the court for all remote hearings. Familiarity with document management software which notably allows for the redaction, page numbering and bookmarking of soft-copy documents has become ubiquitous.
The move to digital has also required increased technological hardware to be made available for the presiding judge, the advocates and any witnesses. It has become apparent that to best follow and contribute to proceedings, advocates and judges (and ideally any witnesses) require at least two screens or devices: the first to navigate and refer to the electronic trial bundle and supporting documents, and the second to access the chosen video communication platform to ‘attend’ the hearing.
The importance of transcription service providers and the support of flexible and attentive IT support teams has also become paramount for hearings lasting certainly one day or more. Without the benefit of a traditional courtroom setting, the need to keep an accurate record of submissions and witness testimony is heightened, especially in light of the inevitable risk of connectivity glitches being experienced during remote hearings. This is where an able IT support team also comes into play.
The introduction of virtual hearings has brought the future of traditional courtroom litigation into sharper focus. As technology increasingly permeates most aspects of modern life it seems reasonable to query whether substantive hearings will continue to be held remotely beyond the Covid-19 crisis.
Whilst the experience gained by litigators of managing complex remote trials during the pandemic may prove invaluable, there are inevitably certain types of cases which do not lend themselves so easily to being resolved virtually. Among these are, of course, criminal cases needing juries. There has also been some concern and at times objection by the parties to allowing cases involving allegations of fraud, dishonesty or misrepresentation, or allegations of professional negligence, to proceed remotely where hotly contested witness evidence demands scrutiny (with some claimants arguing that the demeanour, attitude and body language of witnesses – which have traditionally been assumed to have some bearing on the weight given by the court to the evidence – are more difficult to assess in the virtual courtroom and defendants arguing that they will not necessarily be given a fair opportunity to clear their name and reputation unless they can give evidence in person). Cases involving child witnesses (eg, in family proceedings) are another example where caution against directing hearings to proceed remotely has been advocated for.
In mid-May 2020, during an oral evidence session before the House of Lords constitution committee, the Lord Chief Justice, disclosed plans for the Cloud Video Platform (CVP) to be rolled out to all civil and family courts as a platform for remote hearings. The CVP is still currently in ‘testing mode’ and until it has been properly tested, other platforms such as Zoom, Microsoft Teams and Skype for Business continue to be used by the courts.
Interestingly, Lord Maldon also told peers that there is a sense that there will be an increased demand for the use of remote technology, as a result of the success of remote hearings, despite some litigants in person being unable to access technology. He also called for the current investments in the modernisation of the courts to continue as the country relaxes current Covid-19 working measures.
While the majority of hearings will probably continue to take place remotely for the foreseeable future, pending the full relaxation of social distancing measures, the Lord Chief Justice’s words do suggest that, despite some limitations of a virtual environment, there could well be a long-term role for remote hearings in respect of certain court applications, case management conferences and even trials in the courts of England and Wales.
The Judicial Office, ‘Coronavirus (COVID-19) update from the Lord Chief Justice’, 17 March 2020, see www.judiciary.uk/announcements/coronavirus-update-from-the-lord-chief-justice/. Accessed 12 October 2020.
The Judicial Office, ‘Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts’, 19 March 2020, see www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/. Accessed 12 October 2020.
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