The Civil Justice Council (CJC) has published its report and recommendations following a “rapid review” of the impact of Covid-19 on the civil justice system. The review was undertaken in the first half of May 2020 at the request of the Master of the Rolls.
Unsurprisingly, the report states that the measures put in place to tackle the spread of Covid-19 have resulted in “significant and rapid changes” in the operation of the civil justice system. The report notes that the move to remote hearings has been “swifter and easier in the senior and commercial courts where resources are greater and levels of legal representation are higher”. The move has been more problematic in the County Court.
Because the CJC’s report combines feedback relating to different claim types and values, it is sometimes difficult to separate out feedback relating to major commercial claims compared to other cases – though in general terms, larger cases were over-represented in the feedback as a proportion of all civil cases. And the report states that various factors, including the speed of the review and participant recruitment method (largely via an online survey), mean that the findings should not be generalised to the wider population of court users. However, the report identifies a number of interesting points, as summarised below.
Separately, while very few hearings have been conducted face-to-face in the weeks since lockdown began, the High Court is now taking tentative steps toward restarting physical hearings, as is also explained below.
CJC report and recommendations
Lawyers who completed the survey (and who were the overwhelming majority of respondents) were generally satisfied with their experience of remote hearings, with 71.5% describing their experience as positive or very positive. Levels of satisfaction varied significantly by level of court, however, with a higher proportion of respondents reporting positive perceptions of remote hearings in the senior courts, as compared to the County Court.
Despite this broad satisfaction, most respondents felt that remote hearings were less satisfactory than hearings in person. The principal reason given was the impact on the ability to communicate with clients and other legal teams. Respondents felt that dialogue was less fluent, and that it was less easy to gauge reactions and respond appropriately.
Technical issues were also commonly cited as a reason for viewing remote hearings as less satisfactory. Almost half of all hearings reported on (44.7%) experienced technical difficulties, and that percentage rose for fully video hearings (where 50.8% of respondents reported minor problems and 12.9% significant difficulties).
One commonly reported issue was with participants speaking over each other or not being able to interject. Issues with over-speaking were less common in video hearings than audio hearings, although such issues were reported as occurring due to time lag, connection problems and difficulty reading body language.
Findings on the cost of remote hearings were more equivocal than might be expected, with 39.8% of respondents stating that they were neither more nor less expensive, slightly more expensive or more expensive than physical hearings. Although respondents cited reduced travel and waiting time and the use of electronic documents as reducing costs, they referred to various factors that increased costs, such as increased preparation time (including in preparing electronic bundles), adapting to judicial requests, dealing with logistics, and increased hearing length (since there seems to be a consensus that remote hearings take longer).
As regards access to justice, journalists and court reporters indicated that they have largely been able to attend hearings where they have wished to do so, at least in the High Court, but access for members of the public, legal bloggers and representatives of NGOs has been more problematic. Concerns were raised regarding the number of hearings being held in private, and on difficulties involved in accessing documents relating to hearings.
Very few responses to the survey were received from lay courts users and litigants in person. Responses submitted by those who work with and advocate for vulnerable court users raised a number of concerns about the impact of the rapid shift to remote hearings, including that the lack of communication from court staff prior to hearings and the decline in administrative support caused anxiety and distress, and that many would be unable to access the technology and resources needed to participate effectively in remote hearings.
A number of respondents identified gaps in court guidance for remote hearings. Respondents requested guidance on various issues including: definitive criteria for adjournments/the types of cases that will and will not be heard; suitable platforms for the conduct of remote hearings of different types; how to access and use the platforms and technology specified; a common protocol for how to create an electronic bundle; how to ensure that lay clients are able to participate; how to make adjustments for vulnerable witnesses and parties, litigants in person, and those with limited access to necessary resources; and mandatory rules on breaks for communication between counsel and to provide relief from screen time.
The report states that large commercial firms advocated for the expanded use of remote hearings in commercial litigation, with limited exceptions relating to cases where foreign language interpretation is required. In other areas of law, respondents recommended maximising the use of remote hearings in preliminary matters, interlocutory hearings and trials without evidence, particularly where both sides were represented. The majority of costs disputes were also felt to be suitable for remote determination.
A return to physical hearings?
The Business and Property Courts recently informed court users that, from 1 June, four types of hearing would be possible for Rolls Building courts:
- fully remote hearings with the judge at home;
- remote hearings with the judge in their office or a court in the Rolls Building;
- hybrid hearings with the judge and some participants in court, and some participating remotely; and
- normal physical hearings in which all the participants attend in person.
It is for the judge to decide which is appropriate in a given case. However, since there are only 13 courts in the Rolls Building which are considered suitable for hybrid or normal physical hearings, only a limited number of hearings can take place that way.
Certainly a glance at the daily cause list for the Rolls Building suggests that the vast majority of hearings are continuing to take place remotely, and that chimes with our own experience. However, there is one trial listed for a physical hearing this week in the Commercial Court, in PCP Capital Partners LLP v Barclays Bank Plc. The cause list notes that, due to social distancing measures, only three members of the public and three members of the press can attend – though others can join via Skype for Business, so it appears to be a hybrid hearing rather than a “normal” physical hearing.
There is also a trial listed for a physical hearing this week in the Queen’s Bench Division, in the Royal Courts of Justice. In SC v University Hospital Southampton NHS Foundation Trust  EWHC 1445 (QB), a clinical negligence claim, the court rejected the defendant’s application to adjourn the trial, directing that the hearing should proceed face-to-face. It found that a remote hearing could be conducted fairly, but would be “undesirable” having regard to the “likely length of hearing, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence”. The judge appears to have been influenced in particular by the concerns of one of the clinicians whose treatment of the claimant (and therefore his professional reputation) was in issue, and who felt that he would not be able to give evidence as effectively by video-link. The judge said he had spoken to court staff who were confident that a hearing could be accommodated with appropriate social distancing measures.
This is consistent with the announcement from the Ministry of Justice and HM Courts Service yesterday that more face-to-face hearings are being held in the courts generally, as more court buildings reopen.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2021