Hong Kong courts in lockdown – how technology is helping with dispute resolution in the time of COVID-19

With remote working now the norm across all areas of business, courts and tribunals courts and tribunals have been developing innovative ways to keep the litigation process on track and do their best to ensure that justice is not unduly delayed.

In Hong Kong, the Judiciary has announced a greater use of video-conferencing facilities for remote hearings starting today, 3 April 2020. In its Guidance note, the Judiciary says that "remote hearings using video technology preserve most of the benefits of an oral hearing, allowing parties and their legal representatives to interact with each other on a real-time basis."

On 1 April 2020, Hong Kong introduced a new electronic platform for the lodging of documents in the High Court and Family Court, extending a scheme that was already up and running in the District Court.

Taken together, these are just two of the measures that courts in Hong Kong, the UK and Australia are putting in place to ensure that justice is not unduly attained, whilst public health measures fully respected.

Despite the inconveniences, it is possible to use the slowdown to your advantage, getting ahead while others risk getting tied up with red tape.

Coronavirus challenges

Travel bans presently in place mean that witnesses are unable to attend court, and hearings and judgments have been postponed. Where hearings do take place, the need to observe social distancing means that the numbers of people allowed into a court room has to be strictly limited, if physical attendance can be safely permitted at all.

Hong Kong

In Hong Kong, the courts have been closed for more than two months, since 29 January 2020, with a general adjournment in place of all proceedings in all courts and tribunals (the "General Adjourned Period", or "GAP"). There is an exception for urgent and essential applications (such as for injunctive relief) which will continue to be heard by a Duty Judge. The Judiciary is encouraging litigants to consider using paper disposal in lieu of hearings as far as possible. Where hearings do take place, the time allotted for oral argument will be limited and the numbers permitted to be present will be restricted with social distancing measures in place.

The court registries have also been affected, only beginning to open after about six weeks before suddenly closing again on 22 March following a spike in the infection rate in Hong Kong.

Hong Kong, presently, remains largely dependent on the physical filing of legal documents and although parties can serve documents on each other, filing them at court when the registries are closed, presents a challenge. There is the obvious risk of people then crowding together to file documents once the registries are reopened.

The measures announced on video conferencing demonstrate the ways the courts are trying to keep justice on track. The Court of First Instance recently ordered that a hearing for directions should take place entirely by telephone conference without the parties or their legal representatives being present in court[1]. In a separate case, the Court of First Instance ruled that a continuation of an injunction order would not be granted simply because of the GAP, and that the applicant should have made an application for the matter to be considered on an urgent basis[2].

UK

On 30 April 2020, the courts put in place a contingency plan dividing the court and tribunal estate into three categories, according to priority:

(a) courts that will remain open for all purposes, including hearings in which the judge and at least some of the participants are present, and to which the public, solicitors and barristers will continue to have physical access (priority cases);

(b) courts which will remain staffed and which judges can attend to deal with administrative matters and some remote hearings; and

(c) courts which for the time being will not be staffed and which will be suspended.

Priority cases include, amongst others, matters such as committals, freezing orders, injunctions and applications with a real-time element such as post-termination employment restrictions and anti-social behaviour or harassment.

The Supreme Court has also conducted a case by videolink for the first time ever after closing its building to the public. The Supreme Court has now said it would use video conferencing exclusively for hearings and for handing down judgments following the direction by the UK government that people should stay in their homes whenever possible.

In addition, the UK Ministry of Justice has published the 116^th Practice Direction (PD) update setting out a new PD 51Y Video or audio hearings during coronavirus pandemic. This short direction allows the court to direct that remote hearings take place in private where it is necessary to do so to secure the proper administration of justice and it is not practicable for the hearing to be broadcast in a court building.

Australia

Whilst the High Court of Australia has said it will not be sitting in Canberra or on circuit during the summer months, the Family Court and the Federal Court of Australia say they are continuing operations and developing a new protocol for face-to-face representation in court hearings. The protocol features a greater use of telephone callover by the presiding judge of all matters listed in their docket, with cases that are assessed to be of a lower priority sent for alternative dispute resolution. The courts are already heavily reliant on telephone hearings but are hoping to increase video conferencing capabilities as soon as possible.

Five top tips to get what you want

Whilst the current situation present challenges, it is still possible to progress litigation. The courts in common law jurisdictions generally have wide discretion to ensure that the objectives of justice are properly pursued and that cases are proactively managed.

So what can you do to ensure that if you are pursuing litigation, your cases are being properly advanced and brought to a timely resolution? We suggest the following five points to make sure that your interests are being fully progressed:

Know the rules. In Hong Kong, the Rules of the High Court empower the courts to make orders of their own motion, as well as on application. As was noted by Mr Justice Coleman in Cyberworks, the Court has "wide case management powers in balancing the [underlying objectives] against healthcare concerns, with the support of technology". There is no express provision in either the High Court Ordinance or the Rules of the High Court which require court hearings to be held with the parties or their representatives in physical attendance.

Be proactive. Don't be shy about asking the court for what you want to happen and what is in your best interests. With the situation rapidly changing – and announcements often made at the last minute – you or your lawyers may know more than the court staff.

Don't assume the lockdown is an excuse. If court registries are open, you still need to be making court applications in time or risk falling foul of limitation periods or the length of time injunctions will operate. Delay could be costly. Also, remember – the court closures do not affect rules on service.

Communicate regularly with your lawyers. Ask your lawyers what arrangements they have in place for remote working and maintaining client confidentiality. Most law firms will now have remote working arrangements in place but their effectiveness and robustness may vary. Hogan Lovells operates with a technology infrastructure which enables our lawyers to work remotely anywhere in the world. Plans are in place to ensure that this capability is scalable and that the firm is positioned to work remotely for an extended period of time.

Be innovative and ready for what's to come. The new e-lodging arrangements should take some of the pressure off the court system. Later in the year, Hong Kong will be launching its own online dispute resolution service. The platform will use artificial intelligence and blockchain technology with the aim of replicating the entire dispute resolution process online. New technology can already help with tracking down reluctant defendants. In one recent case, the plaintiff was allowed to serve proceedings on defendants through Facebook[3].

Hogan Lovells has a set of tools available through our dedicated COVID-19 Topic Centre discussing issues such as force majeure, supply chain disruption, employment, contract clauses, data protection, insurance and crisis leadership.

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