On 23 March 2020, the UK Government announced a lockdown on civil society in response to the COVID-19 pandemic. On the same day the Lord Chief Justice of England and Wales made clear that the courts, “as a vital public service”, have an obligation to continue.[1] This obligation is not limited to urgent cases but applies, as far as possible, to all court hearings on the basis that justice delayed is justice denied.
Accordingly, the potential routes of hearing only urgent or essential cases, which has been followed by many countries,[2] or simply dispensing with hearings during lockdown as has been the case in others,[3] have not been adopted in England and Wales.
In keeping with the Lord Chief Justice’s initial message, the English courts have been robust in their response to the challenges presented by COVID-19. While practice continues to evolve to a certain extent, over the last couple of weeks the English courts have transitioned, at speed, to operating to the maximum extent possible on a remote basis. Adjournments will only be granted in limited circumstances.
The speed at which the courts have adapted, including implementing necessary regulations and guidance, is impressive. It is not, as the Lord Chief Justice has recognised, “business as usual”.[4] It is a new way of working. The English courts have responded quickly to the challenges presented by COVID-19 to ensure that the administration of justice, which is critical to upholding the rule of law, continues as an essential service.
This note provides a brief overview of the most recent developments in relation to civil claims.
- The existing procedural rules have been supplemented
The English courts were not without existing procedural tools to conduct remote hearings. However, with judges, judicial staff, lawyers, parties and witnesses operating from multiple separate locations, the challenges presented by the COVID-19 pandemic have required the use of technology on a different scale altogether. The English courts moved rapidly to supplement their civil procedural rules with practice directions and protocols to meet the issues thrown up by these unprecedented circumstances.
These include the following:[5]
- Practice Direction 51Y – Video or Audio Hearings During Coronavirus Pandemic: this provides that where the court directs a hearing to take place wholly or partially by video or audio hearing, it may be heard in private where it is necessary to secure the proper administration of justice. Where a media representative is able to access the hearing remotely, they will be public proceedings.
- Practice Direction 51Z – Extension of time limits: this makes provision for extensions of time to take into account the COVID-19
- A Civil Justice Protocol Regarding Remote Hearings (already in its second version): this covers: (i) when hearings can be heard in private; (ii) for public hearings, the means by which the public will be given access; (iii) the practicalities of fixing a remote hearing; (iv) preparations for a remote hearing; and (v) practicalities for the holding of a remote hearing itself.
- Guidance on HMCTS telephone and video hearings during coronavirus outbreak: this sets out information about the use of telephone and video hearings during the pandemic, including on the decision to conduct a hearing remotely, the forms of technology which may be used, public and media access to hearings, the administration of oaths and affirmations, and the development of new facilities to ensure clients and their legal representatives can exchange privileged communications.
- Courts and tribunals tracker: this tracks in real time the status of each court. Courts are divided into three categories: (i) open courts (fully open to the public in order to enable face-to-face hearings to take place where that is essential); (ii) staffed courts (to be staffed by court staff and the judiciary but not be open to the public from which remote hearings can take place); and (iii) suspended courts (closed during the pandemic). At the time of writing, around 78% of the courts are either open or staffed.
- Court listing priorities: this lists MCTS’s priorities in listing matters for hearing before the civil courts.
- Financial Remedies Courts “e-bundles protocol”: The compilation of electronic bundles has assumed increasing importance since remote hearings became the norm. This protocol identifies good practice for the production of e-bundles.[6]
In addition, recognising the importance of the courts continuing their normal business as far as possible during the COVID-19 pandemic, the emergency legislation dealing with COVID-19 (the Coronavirus Act 2020) makes specific provision to permit live streaming of hearings via video or audio links[7] and permits travel to fulfil a legal obligation, including attending court, or to participate in legal proceedings.[8]
- Remote hearings are now the norm
The Protocol Regarding Remote Hearings makes clear that proceeding with a hearing remotely is the default position for civil cases.
Wherever possible, judges and court officials are required to offer the parties the option of proceeding with a hearing using remote communication methods or appropriate precautions to prevent the transmission of COVID-19. The reality is that a remote hearing is the best way to prevent transmission, and so will be the preferred solution. As a consequence, it is understood that members of the judiciary and court staff are being encouraged to work, as much as possible, away from the courts and hearings are held on a remote basis.
The Protocol recognises that an adjournment may be required, but only in circumstances where: (i) a remote hearing is not possible; and (ii) the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time.[9]
Recent experience suggests that the courts will press on where at all possible. On 19 March 2020, Teare J ruled that the trial of National Bank of Kazakhstan & Another v The Bank of New York Mellon & Ors should be allowed to continue despite concerns being raised about the travel of certain participants and social distancing restrictions. Taking a robust approach, Teare J noted that: “…if at all possible arrangements should be made for the case to go ahead using remote facilities.” He granted an adjournment of two days to allow the parties to make the necessary practical arrangements for the hearing. Similarly, arguments in favour of an adjournment that the trial of an action would breach the lockdown obligations, would endanger the participants in the trial, would not be technically feasible and would give rise to an unfair trial have also been rejected.[10] Applications for even short extensions of time to file evidence and adjournments to trials have been refused, or only modest extensions granted.[11] In Muncipio de Mariana v BHP Group Plc, Eyre J set out a useful list of principles against which he considered such applications should be assessed which seek to balance the objective of keeping to existing deadlines, and to that end the appropriate use of modern technology, with recognising some of the practical challenges imposed by home working.[12] The topic of applications to adjourn hearings on account of COVID-19 is covered in greater depth by Jeremy Brier in a separate note.
There is complete flexibility over the use of appropriate technology to conduct remote hearings.[13] The Protocol Regarding Remote Hearings identifies the following options: BT conference call, Skype for Business, court video link, BT MeetMe, Zoom or ordinary telephone call. However, we understand hearings have most frequently been conducted either by way of video conference (through Skype for Business or connected platforms) or using audio only, usually through a BT MeetMe conference call.
- Hearings remain open to the public
Remote hearings serve one aspect of the administration of justice in that they help to avoid delays to the determination of civil claims. There is an obvious question about how to balance this imperative against the requirements of open justice.
This issue is addressed by both new legislative amendments[14] and the Protocol Regarding Remote Hearings. Where access is given to a remote hearing, it will not be a private hearing.
The Protocol envisages that the public will be given access to a hearing in one of three ways: (i) relaying the audio or video to an open court room; (ii) allowing a media representative to log on remotely; or (iii) live streaming of the hearing over the internet.[15] In practice we understand that, in most cases, access is given on the basis of requests. Typically, there is an entry on the Court List which allows those who wish to “attend” the hearing to notify their wish to do so.[16] They will then be included in the audio or video call. One high-profile example has been the hearing of an application by Amber Heard, Johnny Depp’s ex-wife, for part of her evidence against him in a libel claim to be given in private; the application hearing was, however, joined by journalists dialling in, including those from as far away as Australia. Given that this facility is available, all hearings are regarded as being open to the public. Neither parties nor other attendees are, however, permitted to record the hearing without the judge’s permission.[17]
The court also retains discretion to proceed in private if it is necessary to secure the proper administration of justice. This occurred in Ms Heard’s application hearing, when journalists were ordered to hang up from the Skype call before certain private sessions. Likewise, in Muncipio de Mariana v BHP Group Plc, an application for an extension of time to file evidence in reply was heard in private as this was “necessary … to secure the proper administration of justice”.[18]
- Observations
All those involved in remote hearings are still grappling with the practicalities of this new way of working. There are obvious limitations, not least in terms of team communications, non-verbal communications generally and potential disruptions caused by working from home. Best practice is evolving in this regard and we will need to learn from difficulties encountered, but it is striking at just how much has been achieved with the flexibility and tolerance demanded by these extraordinary times.
Hugh Mercer QC
Angeline Welsh
Naomi Hart
[1] Coronavirus: Message from the Lord Chief Justice to judges in the Civil and Family Courts (23 March 2020) https://www.judiciary.uk/announcements/review-of-court-arrangements-due-to-covid-19-message-from-the-lord-chief-justice/.
[2] See the summary at https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/CCBE-Survey-Exchange-of-experiences-and-best-practices-between-bars-AM-3.pdf and https://www.nycourts.gov. See also for further experiences from around the world: https://remotecourts.org.
[3] See for example Article 2 of the Arrêté Royal du 9 avril 2020: https://wallex.wallonie.be/sites/wallex/contents/acts/28/28929/1.html
[4] “Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts” (19 March 2020) https://www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/.
[5] Much of the updated framework can be found in a new Section AA of the White Book entitled “Coronavirus (COVID 19)”, which was published within days of the lockdown being announced.
[6] “Financial Remedies Courts – e-bundles protocol” (3 March 2020) https://www.judiciary.uk/announcements/financial-remedies-courts-e-bundles-protocol/; see also the equivalent guide from the Administrative Court which contains some useful additional points: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878790/Ops_update_-_Admin_Court_Office_Guide.pdf
[7] S.55 and Schedule 25 of the Coronavirus Act inserting a new S.85A into the Courts Act 2003.
[8] Reg. 6(h) of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
[9] Protocol Regarding Remote Hearings V. 2 at para. 16.
[10] Adrian Hyde and Kevin Murphy (Joint Liquidators of One Blackfriars Limited) v Anthony Nygate (as representative of the estate of James Bannon) and Megan Rayment (The Former Joint Administrators of One Blackfriars Limited) [2020] EWHC 845 (Ch) (judgment here).
[11] Heineken Supply Chain B.V. v Anheuaser-Busch Inbev S.A. [2020] EWHC 892 (Pat) (judgment here).
[12] Muncipio de Mariana v BHP Group Plc [2020] EWHC 928 (TCC), para. 32 (judgment here).
[13] Protocol Regarding Remote Hearings V. 2 at para. 13.
[14] It is relevant to note that the duration for the amendments to the Courts Act 2003 expressly coincides with the period for which the Coronavirus emergency legislation is applicable.
[15] Protocol Regarding Remote Hearings V. 2 at para. 8.
[16] For example, the Queen’s Bench Division listing page has a notice stating, “If Press or Public would like access to the hearing, please e-mail the qbjudgeslistingoffice@justice.gov.uk”: https://www.justice.gov.uk/courts/court-lists/list-queens-bench.
[17] S.55 and Schedule 25 of the Coronavirus Act inserting a new S.85B into the Courts Act 2003.
[18] Muncipio de Mariana v BHP Group Plc [2020] EWHC 928 (TCC) (judgment here).
