The Lord Chief Justice has issued a message to all Judges in the Civil and Family Courts detailing what measures should be taken to ensure access to justice is maintained throughout the COVID-19 pandemic. In a long message The Lord Chief Justice impressed the vital public serve the courts play and that this is obliged to continue so access to justice being can be maintained.
The default position now is that efforts should be made to minimise the number of people attending in person and that hearings should be conducted with at least one or more of the participants attending remotely. It has been acknowledged that the courts do not necessarily have the technological capabilities to offer a full remote service but that HMCTS are working urgently to expand the technology available. In the meantime the courts will rely upon skype, phones and the available video facilities.
The rules of the civil and family courts are fortunately flexible enough to enable video or telephone hearings of almost all cases including very shortly contested final hearings and evidence being given remotely. Many more procedural matters will be dealt with on paper than previously.
The newly published Civil Justice in England and Wales Protocol regarding remote hearings 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.
The full protocol can be found here. This includes the protocol applicable to the Business and Property Courts, which is a slimmed down version of the Civil and Family Courts protocol. A summary of the main provisions are set out below.
Remote hearings where possible
Hearings are to be carried out remotely wherever possible. The 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 Business and Property Courts.
Judges to decide method of hearing
It remains a matter for the judge to determine the method by which the hearing should be conducted. Where a party disagrees with the Judges proposed method the party is to email the court copying in all parties with alternative proposals. The court upon receipt of all parties submission will make a binding decision.
The protocol acknowledges there will be teething problems in undertaking a shift to remote hearings and urges parties to be sympathetic to other difficulties in using technology.
CPR 39.9 provides all proceedings to be taped or digitally recorded but that no party or member of the public may use unofficial recording equipment. A public hearing is to achieved by '(a) one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open court room; (b) allowing accredited journalists to log in to the remote hearing; and/or (c) live streaming of the hearing over the internet. The principles of open justice remain paramount.'
Parties to be proactive
The courts, parties and representatives to consider proactively the arrangements for upcoming hearings as far in advance as possible Any communication method available to participants should be considered if appropriate. Parties to be advised that as far in advance as possible of the identity of judge and parties are to be given one of the following options where possible;
- hearing to be conducted remotely, following the protocol;
- the case will proceed in court with appropriate precautions to prevent transmission of COVID-19;
- the case is to be adjourned because a remote hearing is not possible, and the length of the hearings combined with number of overseas parties make it undesirable to proceed with a hearing in court at this time.
Preparations for remote hearing
Where necessary parties are to produce indexed and paginated electronic bundles and authority bundles and these are to be provided to all parties and representative well in advance of hearing. Bundles are only to contain essential documents. Bundles should be in .pdf or another format and filed on CE-file or to sent by link to an online data room, emailed or delivered on a USB.
The main message is that the courts will be transferring to remote hearings wherever possible, this is going to be a significant change in working practices for all involved and in many cases participants may not have the ideal technology or technological knowledge for the hearings to progress without a hitch in these early weeks and months. Parties are encouraged to cooperate with each other especially where litigants in person are concerned and to do so as far in advance as is practical.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2020.