On 23 March 2020, the UK Government announced a lockdown on civil society in response to the COVID-19 pandemic. Regulations were passed 2 days later (The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020). On the same day the Lord Chief Justice of England and Wales made clear that the courts, “as a vital public service”, have an obligation to continue. This obligation is not limited to urgent cases but applies, as far as possible, to all court hearings on the basis that justice delayed is justice denied.
The courts in some countries are hearing only urgent or essential cases, some countries have dispensed with hearings. This is not the case in England and Wales.
In keeping with the Lord Chief Justice’s initial statement, the English courts have been tried to continue to move cases along, despite COVID-19. While procedures will continue to evolve, since the lockdown started, the English courts have adapted to continue to hear cases, albeit remotely. Adjournments are only granted in limited circumstances.
The speed at which the courts have adapted, including implementing necessary regulations and guidance, is impressive. It is not, as the Lord Chief Justice has recognised, “business as usual”. It is a new way of working. TheEnglish courts have responded quickly to the situation in which we find ourselves due to COVID-19 to ensure that the administration of justice continues. This is essential to upholding the rule of law.
The English courts already had procedural tools to conduct remote hearings. However, due to the lockdown, the use of technology has accelerated at what wouldhave been an inconceivable pace before the pandemic. The Civil Procedure Rules and Practice Directions were supplemented immediately, and suitable protocols introduced.
Video or Audio Hearings (PD51Y)
During the period in which this Direction is in force, where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.
Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings. In such circumstances it will not be necessary to make an order under paragraph 2 and such an order may not be made.
There are also provisions for recording such hearings.
Practice Direction 51Z makes provision for extensions of time to take into account COVID-19.
On 26 March a Civil Justice in England and Wales Protocol Regarding Remote Hearings was promulgated. This commences as follows,
“Introduction to this Protocol
The current pandemic necessitates the use of remotehearings wherever possible. This Protocol applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts. It should be applied flexibly.”
There is guidance on how such hearings should be conducted (https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak?utm_medium=email&utm_source=)
“Courts and tribunals tracker list during coronavirus outbreak" is a page on the government website which tracks in real time the status of each court. Courts are divided into three categories: (i) open courts (fully open to the public in order to enable face-to-face hearings to take place where that is essential); (ii) staffed courts (to be staffed by court staff and the judiciary but not be open to the public from which remote hearings can take place); and (iii) suspended courts (closed during the pandemic). At the time of writing, around 78% of the courts are either open or staffed.
The compilation of electronic bundles of documents for hearings is of vital importance to facilitate remote hearings. A protocol identifies good practice for the production of e-bundles.
In addition, the emergency legislation dealing with COVID-19 (the Coronavirus Act 2020) makes specifically permits live streaming of hearings via video or audio links and permits travel to fulfil a legal obligation, includingattending court, or to participate in legal proceedings.
Remote hearings are now the norm
The Protocol Regarding Remote Hearings makes clear that proceeding with a hearing remotely is the default position for civil cases.
Wherever possible, judges and court officials are required to offer the parties the option of proceeding with a hearing using remote communication methods or appropriate precautions to prevent the transmission of COVID-19. The reality is that a remote hearing is the best way to prevent transmission,and so will be the preferred solution. As a consequence, it is understood that members of the judiciary and court staff are being encouraged to work, as much as possible, away from the courts and hearings are held on a remote basis.
The Protocol recognises that an adjournment may be required, but only in circumstances where: (i) a remote hearing is not possible; and(ii) the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time.
Recent decisions show that the courts will ensure that cases continue wherever possible. On 19 March 2020, Teare J ruled that the trial of National Bank of Kazakhstan & Another v The Bank of New York Mellon & Ors should be allowed to continue despite concerns being raised about the travel of certain participants and social distancing restrictions. Teare J stated that:
"The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now in all jurisdictions must be that a hearing should be conducted with one, more than one, or all participants attending remotely. I accept that for various reasons, in particular the geographical location of the expert witnesses, this exercise will have particular challenges. But it seems to me that having regard to the need to keep the service of public resolution of disputes going, it is incumbent on the parties to seek to arrange a remote hearing if at all possible."
An adjournment of two days was granted to allow the parties to make the necessary practical arrangements for the hearing.
Arguments in favour of an adjournment that the trial of an action would breach the lockdown obligations, would endanger the participants in the trial, would not be technically feasible and would give rise to an unfair trial have also been rejected - Adrian Hyde and Kevin Murphy (Joint Liquidators of One Blackfriars Limited) v Anthony Nygate (as representative of the estate of James Bannon) and Megan Rayment (The Former Joint Administrators of One Blackfriars Limited)  EWHC 845 (Ch) (6 April 2020).
Applications for even short extensions of time to file evidence and adjournments to trials have been refused, or only modest extensions granted. In Muncipio de Mariana v BHP Group Plc (20 April 2020), Eyre J set out a useful list of principles against which he considered such applications should be assessed which seek to balance the objective of keeping to existing deadlines, and to that end the appropriate use of modern technology, with recognising some of the practical challenges imposed by home working. The court set out the following principles asguidance,
i.Regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances.
ii.There is to be a recognition of the extent to which disputes can in fact be resolved fairly by way of remote hearings.
iii.The courts must be prepared to hold remote hearings in circumstances where such a move would have been inconceivable only a matter of weeks ago.
iv.There is to be rigorous examination of the possibility of a remotehearing and of the ways in which such a hearing could be achieved consistent with justice beforethe court should accept that a just determination cannot be achieved in such a hearing.
v.Inevitably the question of whether there can be a fair resolution is possible by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether and if so to what extent live evidence and cross-examination will be necessary is likely to be important in many cases. There will be cases where the court cannot be satisfied that a fair resolution can be achieved by way ofa remote hearing.
There is complete flexibility over theuse of appropriate technology to conduct remote hearings. The Protocol Regarding Remote Hearings refers to several options- BT conference call, Skype for Business, court video link, BT MeetMe, Zoom or ordinary telephone call. To date, hearings have most frequently been conducted either by way of video conference (through Skype for Business or connected platforms) or using audio only, usually through a BT MeetMe conference call.
Hearings remain open to the public
Remote hearings serve one aspect of the administration of justice in that they help to avoid delays to the determination of civil claims. There is an obvious question about how to balance this imperative against the requirements of open justice.
This issue is addressed by both new legislative amendments and the Protocol Regarding Remote Hearings. Where access isgiven to a remote hearing, it will not be a private hearing.
The Protocol envisages that the public will be given access to a hearing in one of three ways: (i) relaying the audio or video to an open court room; (ii) allowing a media representative to log on remotely; or (iii) live streaming of the hearing over the internet. In practice we understand that, in most cases, access is given on the basis of requests. Generally, there is an entry on the Court List which allows those who wish to “attend” the hearing to notify their wish to do so. They will then be included in the audio or video call. One high-profile example has been the hearing of an application by Amber Heard, Johnny Depp’s ex-wife, for part of her evidence against him in a libel claim to be given in private; the application hearing was, however, joined by journalists dialling in, including those from as far away as Australia. Given that this facility is available, all hearings are regarded as being open to the public. Neither parties nor other attendees are, however, permitted to record the hearing without the judge’s permission.
The court also retains discretion to proceed in private if it is necessary to secure the proper administration of justice. This occurred in Ms Heard’s application hearing, when journalists were ordered to hang up from theSkype call before certain private sessions.
Likewise, in Muncipio de Mariana v BHP Group Plc, an application for an extension of time to file evidence in reply was heard in private as this was “necessary … to secure the proper administration of justice”.
Depositions for foreign proceedings
Some depositions for foreign proceedings are also proceeding by using videoconferencing.
This is a new way of working and processes will evolve to make video hearings more efficient. It is remarkable how ‘needs must’ has made significant changes to centuries’ old practices happen almost overnight. It is likely that even after lockdown has ended, a significant number of hearings, for example dealing with timetabling and other procedural matters,may continue to be dealt with by video conference to save unnecessary travel and lower costs. This way of working will also mandate a more selective approach to the contents of bundles (documents put before the court) for hearings and trials and will probably also carry over into trials in court when they take place in courtrooms in due course.
For more guidance on the procedure please see Depositions, Discovery and Obtaining Evidence in England.
5 May 2020