In public statements in the early stages of the pandemic, the Lord Chancellor and the Lord Chief Justice both emphasised the importance for the administration of justice not to grind to a halt as the result of the pandemic and the lockdown measures imposed to control it. Consequently, significant efforts have been made across the justice system to ensure progress in legal proceedings, despite the constraints.
An uptake of technology by HM Courts & Tribunals Service (HMCTS) during the pandemic has not only meant that our courts have been able to sustain more work than most comparable jurisdictions elsewhere – many of which shut down almost entirely during lockdown – but will also impact the future of the judicial system and the rule of law.
Pressure for Progress in Legal Proceedings
At the beginning of the pandemic, HMCTS had to radically alter the way it operates within a very short time. Although the lockdown severely restricted the operations of the courts, HMCTS adopted the use of technology for remote hearings. With the urge to operate under a “business as usual” practice and with up to 90% of hearings being heard remotely during the pandemic, parties to litigation proceedings have had to get to grips quickly with etiquette and best practice for remote hearings, in part with help from HMCTS guidance.
On 1 July 2020, HMCTS announced that the use of the Cloud Video Platform, which has been used in the Crown and Magistrates’ Courts, is to be extended in the Civil Courts, thus demonstrating HMCTS’ commitment to rolling out the use of technology. Other measures have also recently been taken to alleviate the pressure on courts and tribunals resulting from the pandemic such as the opening of ‘Nightingale’ Court sites. HMCTS is also considering whether there is a need to extend the operating hours of the Courts.
It is worth noting that the effects of the pandemic extend beyond the virtual courtroom, with a noticeable shift in some of the usual litigation trends:
- An increased pressure on the court system in light of the pandemic has led to the promotion of alternative dispute resolution, such as arbitration and mediation.
- Since 2 April 2020, parties to civil litigation can now agree longer delays between themselves without court approval (Practice Direction 51ZA).
- Parties are facing increased costs (including legal and business fees) due to the delays.
- The number of new claims has fallen. In the commercial courts, this has been by as much as 50% during the pandemic.
However, whether all of these trends are directly attributable to the pandemic must be taken with a grain of salt. The pandemic coincides with the fast approaching end of the Brexit transition period which currently looks to end without a deal. As things stand, from 1 January 2020 English court judgments will not be enforceable in continental Europe as a matter of EU law and it is very unclear in which countries judgments of UK courts will be enforceable as a matter of each EU member state’s domestic law. There are also serious issues as to whether UK lawyers will be able to assert privilege over communications on the continent. The result is that, apart from a few brave practitioners, most lawyers no longer use English court clauses in contracts unless the matter has no connection with Europe and it would be a very brave practitioner indeed who started English court proceedings in the current climate involving a dispute where the defendant’s assets are in Europe. For the foreseeable future arbitration clauses will continue to dominate international commercial matters in the UK.
A Permanent Change to our Courts’ System?
Although most courts and tribunals buildings have been open since 17 July 2020, in line with public health advice, the Lord Chief Justice has expressed doubts that the courts will operate in quite the same way ever again. Many judges have found virtual hearings convenient and (on the whole) successful, leading to suggestions that the technology could be here to stay. Such technology could also help to alleviate the financial pressures increasingly faced by courts. The idea is such that remote hearings will continue to take place in civil and family matters where possible and decisions on how to conduct the hearings remain at the discretion of the judiciary.
However, this triggers crucial questions, not only for the courts, but for judges, practitioners and clients.
Firstly, the impact of remote hearings on the proceedings (and their flaws when compared to traditional, in-person hearings) must be considered by parties, and ultimately by the presiding judge.
Secondly, we could well see a permanent shift in the use of courts to settle disputes. The drop in new claims and the increase of alternative dispute resolution has already been noted. The courts will also have to convince parties (particularly those with sensitive matters) that their conference software is sufficiently robust and secure.
Finally, and even more broadly, the government and courts will have to carefully consider the impact of virtual hearings on the interests of justice and the rule of law. The risk of procedural unfairness during remote hearings was noted in Hyde and Murphy v Nygate and Rayment . Still, the judge asserted that the risk affected both sides equally and that the parties were both well resourced and well placed to manage a remote trial. The case of SC v University Hospitals Southampton NHS Trust  further explored the concept of “fairness” during remote hearings. Justice Johnson concluded that were many cases where a remote hearing can, with careful case management, take place in a way that is fair to the parties. The judge went on to say that the hearing could be conducted remotely in a way that was fair, but stressed that this did not mean that it should be conducted remotely. Indeed, there is no legal prohibition on hearings taking place in court and the Health Protection (Coronavirus, Restrictions) (England) Regulations (SI 2020/350) explicitly permits attendance in court.
The above highlights the discussions and risks that a practitioner may face when acting for the parties in any litigated case during these uncertain times. Whilst negotiating between compromise in the face of necessity and practicality and protecting their own interests, parties will need to consider whether a video or an in-person hearing is more suitable.
Trainee Justine Wadhera contributed to this article