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COVID-19: how the lockdown is changing the civil courts

COVID-19: how the lockdown is changing the civil courts

Overview

"Technology is a word that describes something that doesn't work yet".

Bran Ferren, Computer Scientist1

This pandemic has certainly thrown up some challenging questions for lawyers. One I recently fielded was 'Will it transmit coronavirus if I lick the birthday card envelope, and if it does, is it murder if the recipient dies?' (Asked by an acquaintance prone to anxiety. Advice was provided pro bono.) Another, probably widely contemplated, was 'If I sit down in the park, can I say it counts as 'interval training'?' (According to an official patrolling Brockwell Park: no. No leave to appeal.) On top of tough queries such as these, litigators now find themselves confronted with the pressing question of how the civil courts are coping with the lockdown.

I'm afraid that the following anecdote might serve to summarise the current situation in some quarters. The firm received an email from HM Courts and Tribunal Service recently (best not to say from whom exactly). It informed us that a certain employee was awaiting the arrival of his civil service laptop to facilitate his remote working, but that for the present he was, alas, 'merely remote'.

Fortunately, the entire system is not 'merely remote': some aspects of the court system have dealt with the huge and unforeseen challenge of the lockdown much better than others. The changes that have occurred, and how these might carry forward into the future, are summarised below.

Remote hearings

HMCTS has long been trying to shift to a less paper-based system as part of the HMCTS Reform Programme. The 'CE File' website is one example of this initiative. However, on the whole, the project has been a disobliging combination of (i) not very successful, yet (ii) very expensive.

The current crisis seems to have done in this regard what various initiatives previously could not, and forced real progress. All hearings are now proceedings remotely whenever possible and judicial laptops now boast a bespoke HMCTS video hearing facility (Cloud Video Platform, or 'CVP'), as well as Skype.2 The recent trial of Republic of Kazakhstan v The Bank of New York Mellon3 in the Commercial Court took place entirely remotely, and Teare J noted in the judgment that:

The hearing was conducted without any technical hitch and all parties co-operated to ensure that the hearing took place efficiently and fairly.

It is, however, worth noting that, despite the positive feedback from the higher courts, the County Courts are struggling.  Their remote hearings appear to have been dogged by issues such as over-stuffed lists and litigants not appreciating the seriousness and formality of court proceedings whilst participating via video-link. These are issues that will need to be ironed out in future.

Adjournments and Backlogs

A huge backlog of cases is piling up. This is emphatically not due to the system deciding to put its collective feet up and await happier times: recent decisions in Re Blackfriars Limited4 and Heineken Supply Chain5 show that judges are not willing to grant adjournments solely because of the fact of the lockdown.6 However, the flow of decisions and judgments from the courts has still slowed considerably: despite the time saved by nobody currently having to commute, the lower courts in particular are having to significantly reduce their lists, as back-to-back hearings on a screen are resulting in judicial fatigue (my emphasis):

It is important that the listing of cases, which is a matter for judges, takes account of the reality that long hours in front of a screen or on the phone concentrating hard are more tiring than sitting in a court room with all the participants present. [..] Video hearings have proved more tiring than ordinary hearings, so lists of about half their usual length may well be appropriate.7

How, then, to cope with such reduced judicial capacity? Much like my lockdown personal grooming routine, HM Courts & Tribunal Service has split civil court listings at county court level into (i) work that 'must be done' and (ii) work that 'could be done' (but only if the courts are able to get round to it). Both HMCTS and I have found that you can actually put off quite a lot. As of mid-April, only around 40% of all hearings have continued since lockdown across all UK jurisdictions.8 Even if a sizeable proportion of the remainder choose to settle in the interim, clearly this will soon lead to a daunting backlog, and is likely only to increase (already lengthy) waiting times for months, if not years, to come.

Witness demeanour

A further interesting question is whether remote hearings give judges the same opportunity as physical ones to assess witness demeanour.  How is a judge to assess witness credibility if said witness is not before them in the flesh? Can personality and motivations really be gauged in the same way over video-link?

The answer appears to be, "perhaps".  Firstly, there are some suggestions that the close-up of a witness's face offered by the laptop camera is actually more helpful for assessing credibility. Secondly, if a witness feels that they can shout abuse at the judge behind the safety of a screen (this is, unfortunately, a problem dogging remote hearings9), then that in itself may be revealing. Thirdly, of course, assessing credibility based on body language, tone of voice and so on – the 'in person' markers – is an inexact science at best, as has already been recognised in the leading case in this area, Gestmin10.

If all that is right, then the recent switch to remote hearings will probably have a minor effect on judicial ability to assess witness demeanour.

Open justice

The new Practice Direction 51Y ('Video or audio hearings during coronavirus pandemic') allows for hearings which would usually be held in public to be held in private 'where necessary to do so to secure the proper administration of justice'.  This is, on the face of it, needful in the current circumstances. However, remote hearings can clearly create obstacles for the public's observation of justice and the press's participation therein. PD 51Y.3 states that 'where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings'. This is a convenient stop-gap, but the presence of one journalist (who may or may not report with bias) is clearly not equivalent to a hearing open to the public.

We are, however, hearing encouraging news that judges throughout the system are starting to explore ways of livestreaming hearings in the way that the Supreme Court habitually does.  This could be a simple and effective solution to ensure that open justice is upheld.

Future consequences

Once the current restrictions ease and the economy picks up, there may be a huge increase in COVID-related litigation. Former Supreme Court President Lord Neuberger has therefore suggested that the system needs 'breathing space' in order to not be overwhelmed.11 Other senior voices have agreed that parties should focus on negotiation, mediations and conciliation to achieve results in the short term. All very sensible – but parties have long been encouraged not to litigate whenever possible, and litigation continues anyway, so these exhortations may not be heeded.

This suggests that the existing court infrastructure, already long creaking, will struggle to cope with both (i) the significant case backlog discussed above and (ii) a substantial influx of new cases as the economy returns to something approaching normal.

Without the appearance of a benevolent Rishi Sunak ex machina, the system may well bear the scars of lockdown for years yet. However, we can also take heart from all the innovation that the lockdown has generated and hope that the best of the new remote working practices are carried forward into the future by judges and practitioners alike.

References

1 Bran Ferren, Computer Scientist, quoted by Douglas Adams in 'How to Stop Worrying and Learn to Love the Internet'.

2 https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak

3 Republic of Kazakhstan v The Bank of New York Mellon SA/NV London & Ors [2020] EWHC 916

4 Re Blackfriars Ltd [2020] EWHC 845 (CH)

5 Heineken Supply Chain BV V Anheuser-Busch Inbev SA [2020] EWHC 892 (PAT)

6 If parties cannot agree them between themselves, that is: Practice Direction 51ZA helpfully enables parties to agree to extensions of time of up to 56 days between themselves without needing to make an application to court (instead of up to 28 days, as previously provided in CPR 3.8(4)).

7 https://www.judiciary.uk/wp-content/uploads/2020/04/Message-to-CJJ-and-DJJ-9-April-2020.pdf

8 https://www.judiciary.uk/wp-content/uploads/2020/04/Message-to-CJJ-and-DJJ-9-April-2020.pdf

9 https://www.judiciary.uk/wp-content/uploads/2020/04/Message-to-CJJ-and-DJJ-9-April-2020.pdf

10 Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) 

11 https://www.lawgazette.co.uk/law/judicial-heavyweights-call-for-breathing-space-to-save-dispute-resolution-system/5104038.article

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