Disputes Quick Read: Will the courts change forever post-COVID?

Quick read

Much has been reported about the success of remote hearings and how the measures taken by courts during the pandemic will impact how they operate in the future.

There is certainly support at the highest levels of our judiciary for using the experiences of COVID-19 to accelerate a digital court system. Speaking at the recent London International Disputes Week, the Right Hon. Sir Geoffrey Vos noted how important it is for the courts to bring processes online.

This goes beyond using remote hearing platforms and electronic bundles. It means moving to a truly integrated online system, including using artificial intelligence and smart programming to suggest resolutions (although not to determine outcomes). The ambition will be to increase access to justice by allowing individuals to bring claims at a proportionate cost and without undue delay – but will online dispute resolution ultimately replace the physical courts entirely?

Are all cases a good fit for the remote hearing approach?

Inevitably, there are those cases which are too difficult to be resolved through a more automated online process.

Sir Julian Flaux spoke at the recent Civil Justice Conference about the importance of building on the positive changes brought about by COVID-19. While acknowledging that some hearings lend themselves to being conducted remotely, he also recognised that a remote hearing had "its price" including having a robust infrastructure and balancing the impact on workloads across the judiciary.

Another important issue is the extent to which witnesses should be permitted to give evidence remotely, and Sir Julian suggested that some guidance for judges would be helpful. He also stressed the importance of retaining the authority and formality of the court and achieving open access for all in all forms of hearings.

Could virtual and physical courtrooms co-exist?

Interestingly, the minutes of a recent Commercial Court user group meeting recorded that "in-court trial remains the gold standard". The minutes further stated that the court is looking to return to in-court trials – although this doesn't necessarily mean that all hearings will be held in a physical courtroom.

So, while COVID-19 has accelerated change and it's now unlikely that all hearings will be held in a courtroom, you can expect in-person hearings to continue to be an essential part of the justice process.