All Change: Court hearings during the coronavirus pandemic

There has been much speculation this week as to how the civil courts are going to cope with the new realities imposed by coronavirus.

After not a little frustration that the Courts appeared to be following a “business as usual” approach while the whole country was being told to self-isolate, the Lord Chief Justice issued guidance to the judiciary yesterday which can be found on Gordon Exall’s blog here: in short, telephone/video hearings should be the default scenario.

But what of trials in which it is necessary to cross examine witnesses? The Lord Chief’s guidance is emphatic:

Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned.

But surely the Courts will need to adjourn trials listed for the near future? Well, someone tried that yesterday in front of Teare J (the Judge in Charge of the Commercial Court) and received short shrift:

Well, it does appear to me that it would not be right simply to adjourn the trial fixed for next week to some unidentified date in the future. 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 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. We all have to adapt, and very quickly, to a new paradigm. Parties will have to devise means by which witnesses, giving evidence over Skype from their homes or offices, can have access to the documents which will be referred to in the course of cross-examination and re-examination. Real and meaningful co-operation (rather than petty squabbling) will have to be embedded in our culture. Electronic bundles are, as of 24 hours ago, a necessity rather than the exception (Hallelujah!).

And perhaps, just perhaps, we as a profession will adapt to a leaner, more focused, more efficient and ultimately more cost-effective way of working.

by David Turner QC