Should Remote Court Hearings Be The Default?

Law.Com

24 July 2020

In a recent Commercial Court user group meeting it was apparently announced by Mrs Justice Cockerill that the Commercial Court is considering whether to adopt remote or hybrid hearings as the default.

In a recent Commercial Court user group meeting it was apparently announced by Mrs Justice Cockerill that the Commercial Court is considering whether to adopt remote or hybrid hearings as the default.

Initially born of necessity, remote hearings (and the burgeoning industry surrounding them) have quickly become the new normal. Data published by HMCTS suggested that by mid April 2020 around 3,000 hearings were taking place on audio or video platforms each day with up to 90% of hearings proceeding on this basis. As the country starts to re-open there will inevitably be questions asked about what should be retained from this new normal.
Whilst there have been instances where the judge’s connection has dropped out, where photographs have been taken or proceedings recorded, on the whole remote hearings have been remarkably successful. However, being remarkably successful does not mean that this is necessarily the best way of dealing with everything, and we need to ensure that ‘good enough in a pandemic’ is not adopted as default in all cases.

It seems unlikely that anyone would be keen to choose remote hearings for long trials or cases which are likely to turn on the cross-examination and credibility of witnesses. Claims involving allegations of fraud or dishonesty are unlikely to be suitable for remote determination.
This could give rise to a new level of strategic planning on the part of the legal team: in circumstances in which a case relies on the testimony of a potentially incredible witness, might there be an advantage gained from that witness being cross examined remotely and avoiding the immediate judicial gaze?

Attending a hearing remotely is almost certainly going to be cheaper than attending in person. The lack of travel and waiting time alone should streamline the costs of shorter hearings.

Likewise where hearings involve witnesses and parties who are not ordinarily based locally, the familiarity which the courts now have with remote hearings should reduce the need for extensive travel, and reduce the risk of any disadvantage being suffered by a party whose witnesses are not physically present in the court room.
A well organised remote trial can also be managed in a way which involves parties being advised shortly before they are required to log in, such that witnesses can be handled efficiently with the potential for more witnesses to be heard.

However, it does seem that matters take longer when dealt with remotely: perhaps because of the need to have regular breaks, and perhaps because absent the visual clues which are a fundamental part of communication, more elucidation is required to ensure points are clear.

Anecdotally the listing of hearings is more difficult as it is no longer possible for a court clerk to pop outside an over-running hearing to let any parties waiting know what is happening. Likewise longer running hearings put more pressure on judges and court staff.

The success of remote hearings does rely entirely on the parties having access to technology and familiarity with that technology. During the lock down period there have been a number of failures on behalf of internet service providers, which could have proved extremely problematic if a judge was impacted and was not able to access alternative coverage.

There are issues of access to justice which should be considered, and whilst this is less likely to arise in the Commercial Court than in local district registries, access to broadband, a personal computer and sufficiently up to date software to support the programmes used should not be assumed, and the courts will need to be willing to accommodate physical hearings where access to justice requires it.

Whilst commercial parties accustomed to litigation will no doubt welcome the costs saving and efficiency of remote hearings, there is, anecdotally at least, some dissatisfaction from clients who do not feel they had their ‘day in court’. Such feelings should change as remote hearings become more widely used.

More is needed to ensure that public access is maintained. Third parties wanting to watch a trial or hearing should not have to request access and provide contact details. This does not reflect the transparency which is central to our idea of open and public justice. Streaming of hearings on publically available platforms such as YouTube offers a more satisfactory solution.

At present, Practice Direction 51Y requires the court to make a direction that a hearing take place remotely. There may be hearings which are suitable to be heard remotely, but in hearings dealing with substantive matters there should be a degree of consideration, and the parties’ wishes should be taken into account.

Just as application notices ask whether an application needs to be decided at a hearing, an additional question could be asked in respect of whether the hearing could take place remotely. Likewise directions to trial could incorporate consideration of whether some or all of the trial could take place remotely.

The courts in most instances are sufficiently comfortable in dealing with issues remotely that there is no good reason for parties and the court not to be compelled to consider, on a case by case basis, the best format for a trial or hearing as part of the case management and/or pre-trial process.

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