With the entire nation having to adapt to the major disruption that the global COVID-19 pandemic has brought along, it feels like life has been temporarily put on hold. Almost everybody is having to work from home if they can, and children are being home-schooled.

The legal system is also having to adapt, with the courts being forced to modify their practices to comply with recent government requirements for social distancing and the temporary ban on public gatherings.

With telephone hearings and electronic bundles already fairly common in court hearings, the change isn’t as drastic as one might think. Video and other technology has been used in the courts for some time already too. With the default position now being that all hearings must be held remotely, it’s now time for our law system and the courts to rely on technology more than ever.

Will every single court hearing now be held remotely?

Unfortunately – and unsurprisingly – there is no ‘one-size-fits-all’ answer.

So far as possible, the courts will be holding public hearings remotely, and these hearings will be recorded as explained in a new Practice Direction 51Y supplement brought in under the emergency Coronavirus Act 2020 legislation.

Family hearings will continue to be held as normal as well, with the procedures and formats replicating that of a standard ‘live’ hearing, as well as final hearings, trials and hearings with contested evidence.

Are there any drawbacks of using video conferencing in court?

Other than the logistical and technological challenges that may arise from having to utilise technology to hold hearings, there may be a couple of trials – pardon the pun – and tribulations that occur. In order to ensure that the legal system continues without interruption and that justice is served effectively, all parties involved in any court process must be flexible and do what they can to facilitate the hearing to go forward.

Won’t video conferencing just make everything much harder?

Of course, there will be some logistical challenges with holding court hearings via video conferencing technology – but if coronavirus meant that every court hearing had to be postponed, then the backlog of hearings would build up to an unthinkable level and potentially cause even more problems in the long run, not to mention the added stress of waiting for hearings for victims, defendants, witnesses and others involved in the processes.

The Lord Chief Justice noted, in a statement to the judiciary in the Civil and Family Courts, that if all hearings are adjourned because of COVID-19, then “there will be no hearings and access to justice will become a mirage”.

With trials that involve a substantial number of witnesses or parties that live overseas, the details are slightly trickier. However, a court will not postpone a hearing simply because it’s more difficult logistically to hold the hearing via a video conferencing. Last month, The Lord Chief Justice issued guidance which made it very clear that remote hearings are now the default position, and that there would be very little room for movement on this rule.

Mr Justice Teare, the judge in charge of the Commercial and Admiralty Courts, last month rejected a party’s application to adjourn a hearing because using video conferencing technology would be “an unmitigated disaster”.

Teare J said: “I accept nothing is certain. There may be difficulties with the conferencing facilities which cause delay … But essentially the court would be seeking to use the two weeks which were intended to be occupied by this case. I bear in mind Mr S’s experience of video conferencing facilities, and I note that he suggests that going down this route would be an unmitigated disaster. But that appears to me really not to be the sort of approach which the court, in the present climate, can adopt. The court has to be optimistic, rather than pessimistic. It is the duty of all the parties to seek to co-operate to ensure that a remote hearing is possible.”

So there we have it. The courts – and all parties using their services – must be optimistic rather than pessimistic, and ensure that every effort is made to make use of technology in order to hold remote hearings where possible.

If you have any questions, please feel free to contact us on 020 3476 6751 or by email info@carterbond.co.uk

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