E-Hearings: Changes to the Court hearing system in response to COVID-19

A brief overview of certain changes in the Court’s administration of justice at hearings as a result of the coronavirus outbreak.

The impact of the global outbreak of the novel coronavirus, COVID-19, is affecting many people across the world in a multitude of ways. This article briefly covers how the famously archaic civil justice system in England and Wales is adapting to the challenges it brings.

The Court’s rapidly developing guidance on the HM Courts & Tribunals Service (HMCTS) website confirms that it is “adjusting practices and taking steps to minimise any risk to the judiciary, staff, professional and public users”. It goes on to confirm that any changes to hearings currently in the Court’s list will be communicated directly to the affected parties and that they will seek to do this by email and/or phone, which in itself represents a change for some Courts that would traditionally communicate by letter.

The guidance (last updated 23 March 2020, as at the time of writing) confirms that the Courts have put arrangements in place to use telephone, video and other technology to have as many hearings as possible conducted remotely.

In addition, the Courts and Tribunals Judiciary has issued a Protocol (dated 20 March 2020) on how to conduct remote civil hearings in England and Wales. It is available here, though in summary:

• Remote hearings should be used “wherever possible.”This applies to hearings of all kinds, including trials and where litigants in person are involved.
• The conduct of the hearing is and always remains a matter for the Judge (in accordance with applicable law and rules).
• As an indication of the anticipated “teething troubles”parties are urged to be “sympathetic to the technological and other difficulties” that may be experienced.
• Parties are directed not to record any hearing unofficially and without permission of the Judge.
• The principles of open justice remain paramount. This may include transmitting the hearing to accredited journalists or live streaming over the internet. As to recording (if not dispensed with by order), this can be achieved by the normal court recording equipment, where it is relayed to an open court room; otherwise recording via BT MeetMe, Skype for Business or Zoom is possible or by the court using a mobile telephone.
• Hearings should be considered as far in advance as possible and the parties (and court) should be more proactive in relation to hearings generally.
• The methods by which remote hearings may be conducted include BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. Though any method of communication can be considered if appropriate.
• The parties will receive a proposal from the court that the hearing will be conducted using one of the remote communication methods, that the case will proceed with “appropriate precautions to prevent the transmission of Covid-19”or that the case will need to be adjourned.
• If the court’s proposals are not agreed with by any party, submissions can be made in writing by email or CE-file for the Judge to make a binding determination.
• If necessary, the parties should prepare an electronic bundle of essential documents and authorities for each remote hearing. The bundle can be in .pdf or another format and should be indexed and paginated, to be provided to the Judge’s clerk, court official or Judge where no official is available, all other parties “well in advance of the hearing.”The bundle must be filed on CE-file (if available) or sent to the court via an online data room (which is preferred), via email or delivered on a USB stick.

The Protocol may be subject to change as the situation continues to evolve and the courts react to the imposition of measures by the Government. In particular, the Supreme Court, as of 23 March 2020, is closed until further notice, with hearings to be conducted via video conferencing facilities.

The Bar Council have also issued guidance on attending hearings. This includes, in relation to Civil or Family Courts, advice to “not attend in person unless the hearing is genuinely urgent and it cannot be done remotely. Such a hearing will be a rare occurrence.”