There is (understandably) a deluge of guidance being issued on a daily basis by the various courts which are grappling with the practical impact of COVID-19 on the operation of the justice system.
The courts have, it seems, embraced the adoption of technology to resolve disputes, be that conference calls or video conferences over Skype, Zoom or similar applications. All judicial laptops now have Skype for Business enabled.
On 25 March 2020, the Supreme Court issued its first judgment remotely – giving us a fine view of what we assume to be Lord Justice Kerr's private collection of law reports – and in a well-publicised success in the family courts, Mostyn J completed a five party final hearing with evidence from 11 witnesses and the press attending remotely.
While there have been some teething problems (and these will no doubt continue) the direction of travel is clear. Discretion ultimately resides with the judiciary regarding how or whether a hearing should proceed, but they and the parties have shown a willingness to cooperate and to facilitate remote hearings.
When faced with adjourning a trial last week, Teare J reportedly commented that the default position is that hearings should be conducted with one or more participants attending remotely, the court should take an optimistic approach to how this will work, and it is the duty of all parties to seek to co-operate. That must be the right approach in these difficult times.
The protocol for remote hearings in the civil justice system (published on 20 March 2020) sets out some practical steps. It encourages parties to take a proactive approach to forthcoming hearings, hold short directions hearings (if necessary) to discuss and agree how best to use the technology, and prepare and file electronic bundles.
A new practice direction (51Y) was issued on 25 March 2020, providing further guidance on video or audio hearings during the pandemic, dealing largely with privacy aspects of remote hearings.
As experience grows, guidance can be fine-tuned. In the meantime, parties and the judiciary should continue to work together to find practical solutions, often backed by technology, to the operational problems caused by the current outbreak.
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