A number of updates to the arrangements in the English and Welsh Courts have been made since our last update on 26 March, including the expanded use of video and audio conferencing.
Court Openings
HM Courts & Tribunals Service (HMCTS) have announced that the work of the courts will be consolidated into fewer buildings. Forty two percent of the crown, magistrates, county and family courts and tribunals will remain open across England and Wales in order to maintain a core justice system focused on the most essential cases (the Priority Courts). The Priority Courts include the Rolls Building in London, which is focused on financial, business, and property litigation.
Only hearings that cannot be heard by video or telephone and which cannot be delayed will be held in these Priority Courts.
A further 124 court and tribunal buildings will remain closed to the public but open to HMCTS staff, the judiciary, and those from other agencies. These “staffed courts” will support video and telephone hearings, progress cases without hearings, and ensure continued access to justice.
HMCTS Guidance on Telephone and Video Hearings
On 27 March, HMCTS updated its guidance on how HMCTS will use telephone and video technology during the coronavirus (COVID-19) outbreak (HMCTS telephone and video hearings during coronavirus outbreak).
As stated in the previous update, the method by which a hearing is conducted is a matter for the judge(s). However, HMCTS has advised that, in considering the suitability of video/audio, judges will consider issues such as (i) the nature of the matters at stake during the hearing; (ii) any issues the use of video/audio technology may present for participants in the hearing, having regard to individuals’ needs; and (iii) any issues around public access to or participation in the hearing.
HMCTS is expanding its capacity and working to increase and improve the ways in which audio and video technology can support hearings to take place. This includes:
Please note, HMCTS has stated that it does not currently support the use of other video conferencing applications. However, the recent hearing of National Bank of Kazakhstan & Others v The Bank of New York Mellon & Ors (see below) was conducted using “Zoom” video conferencing technology.
HMCTS is also (i) increasing the capacity of its “cloud video platform” which will provide video hearing capability for any courtrooms that have suitable equipment and can be accessed through any laptop or video device; and (ii) expanding the capacity of its fully video hearings solution, which has already been used on a small scale in specified civil, family, and tax tribunal hearing types. HMCTS are looking to ensure that this bespoke video hearing solution is robust and can handle significant volumes of hearings, as quickly as possible.
HMCTS has reported that these measures are already enabling hearings to go ahead effectively. Examples given include a five-day trial completed over video in the Court of Protection and nearly 500 audio hearings completed.
Also, on 19 March, Mr Justice Teare (sitting in the High Court) ruled that the trial of National Bank of Kazakhstan & Others v The Bank of New York Mellon & Ors should go ahead as a virtual trial with an adjournment of just two days in order to allow for the use of video conferencing technology. In his judgement, Teare J made it clear that:
“The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one, or all participants attending remotely. … I accept that for various reasons, in particular the geographical location of the expert witnesses, this exercise will have particular challenges, but it seems to me that, having regard to the need to keep the service of public resolution of disputes going, it is incumbent on the parties to seek to arrange a remote hearing, if at all possible …”.
While any decision will depend on the specific facts of the case, this judgment shows that the courts are willing to proceed with remote trials in relation to complex disputes where parties, experts, and witnesses are located in multiple jurisdictions.
Arrangements were also made to ensure that the principle of open justice was being upheld. A full public live stream was not available for technical reasons on the first day and so, with the agreement of Mr Justice Teare, specific individual links to the live hearing were made available to the public on request, and the transcript and a video recording was later released.
While the use of telephone and video conferencing services is not new in relation to hearings, there obviously has (and will be) a huge increase in their use. With HMCTS, law firms and arbitration bodies investing significant time and money in ensuring that these processes work as effectively and seamlessly as possible, it seems likely that a higher proportion of hearings will continue to be held remotely even once the COVID-19 restrictions are lifted.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
London
David Waldron
Robert Bolgar-Smith