29 June, 2020
The Civil Justice Council has published its report following the review of the impact of the COVID-19 Pandemic on the Civil Justice System. The report notes the rapid expansion of the use of remote hearings, the fact that very few face to face hearings have taken place in April and May 2020, and the lack of consistency between the approaches of the different Court Centres and different Judges.
Whilst some technical difficulties were reported in over 40% of the hearings, over 70% of the survey's respondents were positive about the benefits of remote hearings. At present, face to face hearings are preferred to remote hearings by many respondents, but it must be borne in mind that the rapid expansion of remote hearings has been swift and that many of the teething problems faced should be ironed out as litigants and their legal representatives become more accustomed to remote hearings.
The review has been conducted by the Civil Justice Council at the request of the Master of the Rolls, with a view to its findings shaping the way forward for the Civil Justice System, both in the short to medium and in the longer term.
Whilst some Courts are now listing a small number of face to face hearings, as more court buildings reopen, it is clear that the Courts will need to continue to hold remote and partially-remote hearings in order to progress claims and clear the backlog of cases which the Pandemic has caused.
Despite the 70% satisfaction rate, there was still a sense that hearings were less satisfactory than hearings in person. This was largely due to the impact on the ability to communicate with clients and other legal teams. Respondents felt that dialogue was less fluent, and that it was less easy to gauge reactions and respond appropriately.
Of the technical issues reported a common one was with participants speaking over each other or not being able to interject, which you will no doubt have experienced during on-line social settings as well. People also reported that not being able to read body language is also a factor.
Perhaps surprisingly it was not found that remote hearings were any cheaper than face to face ones. There is reduced travel cost and time, but the extra work that has to be put in relation to electronic bundles, ensuring lay attendees have proper access, sorting out logistics, and the extra time that these hearings are taking all added to the cost.
It is clear that it is a judicial decision as to whether a hearing takes place remotely, in person or a hybrid. Practice between different judges varies widely from court to court. Physical factors such as the number of court rooms actually currently open limit the number of face to face hearings in any event.
The clear message however is that hearings should take place to keep the wheels of justice moving. If it is not safe to have a fully face to face hearing then it is expected that a remote or hybrid hearing will take place, even if one or both parties object. There have to be very strong reasons to adjourn, in our experience. Indeed in a recent case in the High Court, SC (A minor) v University Hospital Southampton NHS Foundation Trust (2020), the judge specifically said that there was nothing inherently unfair about remote hearings.