30 April, 2020
The Lord Chief Justice, Master of the Rolls and President of the Family Division have issued a message giving guidance to Circuit and District Judges.
In the message, the three acknowledge that the Courts have risen to the challenge of the lockdown in a "remarkable way". They commented that rather than issuing detailed national guidance, they determined that it was better to leave the decision making as to which cases should be conducted remotely to Judges, noting that it was inevitable that local resources would vary from court to court and from case to case.
The statement reiterates that in the main the experience of those involved in remote hearings is "positive" and therefore the "first and best option" is for a Judge to work in one of the courts and to conduct a hearing via phone, video or an internet platform. However, it was also recognised that using technology to conduct hearings is "unusually tiring" and they have encouraged "all Judges and leadership Judges to recognise that doing as much as possible remotely does not mean, and cannot mean, trying to do everything remotely".
The Master of the Rolls and the President of the Family Division suggest the following broad parameters:
- If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the 'green light' to conduct a hearing in this way.
- Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely.
- Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.
- Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.
In Civil Cases in particular:
- Listing remains a matter for the Judge. Video hearings have proved more tiring than ordinary hearings, so lists of about half their usual length may well be appropriate.
- The guide as to what should be dealt with over the coming weeks is set out in the Civil Listing Priorities, although it is noted there will always be some cases outside those categories which are urgent and will need to be heard as a matter of urgency.
- Particularly careful consideration will need to be given to any remote hearings involving litigants in person, or parties (or witnesses) where English is not their first language.
The message highlights that it is inevitable that many hearings will have to be postponed. Whilst the courts are trying to progress matters where possible, given the current climate it cannot be "business as usual" and it might not be for some time.
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