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The law and in particular the Court system is often perceived as slow moving, bureaucratic and not a particularly teccie environment. The Court’s most recent procedural updates counter these perceptions as they have responded remarkably quickly to the Coronavirus Regulations 2020. These procedural updates also emphasise how significant the legal profession thinks the maintenance of the rule of law is during these uncertain times. The speed with which the legal profession, not a profession well known for its technological expertise, has adapted to the new working environment, within weeks of the imposition of the lockdown is, some might say, nothing short of remarkable. 4 weeks in and in the civil jurisdiction anyway, video conferenced hearings and mediations are taking place routinely. On Tuesday 17 March 2020 (one day after the Government announcement to avoid non-essential contact), in the matter of A Clinical Commissioning Group v AF & Ors [2020] EWCOP 16, there was a four day Court of Protection hearing with cross-examination of witnesses and experts over video conferencing. Apparently it worked well.

The Government is publishing a helpful ‘HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak’[1] which provides information as to the performance/timetables for various Courts (Criminal, Civil and Family) and Tribunals. It seems, at present, that the Civil courts are adapting more successfully to the necessity remote hearings than criminal courts. It is difficult for juries to function on the basis of social distancing.

In practice parties who see no advantage to themselves in pressing ahead with proceedings, have tried to secure a tactical advantage by seeking what amounts to an indefinite adjournment; our limited experience in 4 weeks is that judges have seen the importance to the rule of law to press on. This approach has been witnessed in practice in the last few weeks by members of the firm in offshore proceedings where attempts were made by reluctant parties to adjourn long standing court dates by means of a series of alleged health concerns, childcare issues and technological problems (with accessing Zoom/Microsoft teams) to no effect. The judge pressed ahead, worked his way round the objections and in the end the 4 day hearing proceeded with 35 participants most on mute and off camera to a successful conclusion. One advocate was advised by the judge to get his children off Netflix to improve his internet connection.

In England and Wales, on 25 March 2020, Practice Directions 51Y – Video or Audio Hearings, 51Z – Stay of Possession Proceedings and 51ZA – Extension of Time and Clarification of Practice Direction 51Y were added to the Civil Procedure Rules (‘CPR’). These new Practice Directions were the Court’s response to the Coronavirus Regulations, which were indicated on 23 March 2020 and came into force in legislation on 26 March 2020.

Practice Direction 51Y

Practice Direction 51Y makes provision in relation to video or audio hearings during the Coronavirus Pandemic, it ceases to have effect on the date on which the Coronavirus Regulations cease to have effect (the Secretary of State must review the need for restrictions and requirements imposed by the Regulations at least once every 21 days).

The default position under the CPR is that hearings must be heard openly unless one of the exceptions in CPR 39.2 apply. The recent shift to video or audio proceedings puts a strain on the principle of open justice which Practice Direction 51Y seeks to alleviate in the following ways:

- 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 that the hearing be conducted in private and such an order may not be made.

- Any hearing held in private must be recorded, where that is practicable, in a manner directed by the court. On the application of any person, any recording so made is to be accessed in a court building, with the consent of the court. The reference to ‘application’ in the preceding sentence is to be read as ‘request’. As such any person seeking permission to listen to or view a recording of a hearing is not required to make a formal application under CPR Part 23.

If deemed necessary, Practice Direction 51Y allows the Court to exercise its discretion to temporarily suspend the principle of open justice where hearings are to be conducted wholly as video or audio proceedings and where “it is not practicable for the hearing to be simultaneously broadcast in a court building” and where “it is necessary to do so to secure the proper administration of justice”.

The first remote Commercial Court trial was completed on Zoom before Teare J in National Bank of Kazakhstan & Anr v Bank of New York Mellon & Ors on 26 March – 1 April 2020. On 6 April 2020 in the £250 million matter of On Blackfriars Limited (In Liquidation) Chancery Division Judge John Kimbell QC ruled that going ahead via videoconference, rather than postponing, is “precisely what both the Coronavirus Regulations themselves and the guidance issued by the lord chief justice had in mind” and refused the application to adjourn made at a pre-trial review.

It appears that the Courts are taking seriously their responsibility to hear matters which have been listed during these difficult times. It is for the Judge hearing the matter to take into consideration the practical implications of not being physically present in a Court Building and the principles of open justice where it is simply problematic to provide the general public (and in particular the media) access to video and audio proceedings. The fact that one has to grapple with technology with which one is not initially familiar is not seen as an acceptable reason for the hearing not going ahead. The judges appear to take the view that if they can manage from their homes, possibly with some support (or not) other practitioners can too. It may be that we will be doing this for some time. What is more and of possibly greater significance is when this is over, will hearings continue to be video conferenced, saving considerable legal costs? And, with the saving in costs achieved, will that lead to greater access to civil justice for more people?

[1] HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak, published 25 March 2020, last updated 20 April 2020 https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak