On 23 March 2020, the UK Government announced a lockdown on civil society in response to the COVID-19 pandemic. 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.
In keeping with the Lord Chief Justice’s initial statement, 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. This is essential to upholding the rule of law.
The Civil Procedure Rules and Practice Directions were supplemented immediately, and suitable protocols introduced. There are provisions for recording hearings.
On 26 March a Civil Justice in England and Wales Protocol Regarding Remote Hearings was promulgated. This commences as follows,
“The current pandemic necessitates the use of remote hearings 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.”
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, including attending 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.
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 default position now in all jurisdictions must be that a hearing should be conducted with one, more than one, or all participants attending remotely.”
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.
There is complete flexibility over the use 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.
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. 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.
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 the Skype call before certain private sessions.
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.
5 May 2020