Disputes Quick Read: Will the civil justice system change forever post COVID-19?

QUICK READ

The Civil Justice Council has published a "rapid" review examining the impact of the changes introduced to the civil justice system as a result of COVID-19. This was done to identify areas that need to be addressed in the short to medium term, and to inform a longer term review. Key observations include:

COVID-19 has exacerbated the pre-existing issue of underinvestment in the court system, particularly with regard to the use of technology.
There has been a reduction in the availability and accessibility of legal advice (disproportionately affecting those on lower incomes).
There has been a high rate of adjournments, and managing that back log is an area of real concern.
The majority of remote hearings have related to higher value claims and have not involved litigants in person.
There is tentative support for reserving remote hearings for matters where the outcome is less contested or interlocutory in nature, and for hearings where both parties are represented.
There has been a mixed experience in the higher and lower courts regarding the impact on open justice. Although journalists and court reporters have been able to access hearings which they wished to attend, this has been patchier where members of the public are concerned.

Broadly speaking, professional court users are satisfied with the remote hearings experience. Video hearings are generally preferred to audio-only hearings, due to the more effective communication afforded by the former's visual element.

In terms of improving the remote hearing experience, review participants made the following recommendations:

providing greater granularity and consistency in the guidance issued by different courts regarding the criteria for adjournments and use of remote hearings
issuing timely notice to court users regarding remote hearings, which should include all necessary information regarding the mode of hearing, access details and preparation of e-bundles
increasing the use of breaks in order to allow legal teams to communicate and take instructions from clients, as well as to enable settlement discussions with the other side
investing in better infrastructure to support the preparation and submission of e-bundles and sharing of documents during hearings.

On the long term viability of remote hearings, unsurprisingly, the review has concluded that a better quantity and quality of data is needed to understand their impact. The review identifies several urgent areas for evaluation, including:

the impact of remote hearings on outcomes
a cost-benefit analysis of remote hearings, and
the impact on open justice.

So, although it's too early to say whether the way justice is accessed will change forever, the current trend seems to be towards being open to new ideas and committed to using recent experiences to inform future practices.

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