COVID-19: Courts and Tribunals operating remotely during outbreak

Government advice and policy in response to the Coronavirus (COVID-19) pandemic continues to evolve rapidly. For now, civil Courts remain open and functioning and like many lawyers and businesses across the globe, the Courts and Tribunals have turned to technology to ensure that they continue to allow people and organisations to protect and enforce their legal rights.  

What action have Courts and Tribunals taken?

The government announced on 19 March 2020 that it considers those essential to running the justice system – both civil and criminal justice - as key workers. However, the majority of those that wish to use the justice system are likely subject to the government’s guidance to stay mainly at home to help stop the spread of COVID-19.

In order to ensure that the business of the Courts and Tribunals continues as usual, arrangements have been put in place to use telephone, video and other technology to facilitate remote hearings. The objective of the Judiciary of England and Wales, according to the recently issued (and subsequently updated) Protocol, is to conduct as many hearings as possible remotely in order to minimise the risk of transmission of Covid-19. 'Hearings' includes trials and applications across the County Court, High Court including the Business and Property Courts and Court of Appeal (Civil Division).

To supplement this Protocol, new Court Practice Direction 51Y (Audio Hearings in Civil Proceedings) and Practice Direction 51Z (Stay of Possession Proceedings and Extension of Time Limits) have been introduced for the duration of the COVID-19 period. Practice Direction 51Y (a) clarifies the manner in which the Court may exercise its discretion to conduct hearings remotely in private and (b) details what steps the court may make to ensure access by the public to remote hearings that have been held in private. Practice Direction 51Z sets out that all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from 27 March 2020. Claims for injunctive relief are not subject to this stay.

Where face-to-face hearings are essential, HM Courts and Tribunals Service has taken steps to consolidate the work of courts and tribunals into a small number of 'priority' buildings. A daily update of which Court buildings are open is available online. In a similar vein, the Court of Appeal has published a document entitled 'Royal Courts of Justice Court of Appeal urgent business priorities', which sets out how the Court of Appeal is currently operating – including prioritising only urgent applications in the Civil Appeals Office.

What are the practical impacts on active civil claims?

Although the position is still evolving, there are likely to be a number of practical impacts on claims which are already underway:

• Teething problems - There is likely to be teething problems as the Courts and Tribunals adjust to operating remotely. There have already been successful hearings but flexibility is likely to be needed;
• Shorter hearings assumed to be by telephone: Allocation Hearings, Listing Hearings, Interim Applications, Case Management Conferences and Pre-Trial Reviews with a time estimate of no more than 1 hour are assumed to be conducted by telephone;
• Longer hearings or trial may vary: the Court, parties and their representatives are expected to be proactive in relation to how forthcoming hearings are undertaken. The method of the hearing will depend on the facilities available at the Court in question – including for example video link;
• The method of remote hearing can be challenged – should a party consider that an alternative method is more suitable;
• Bundles of documents should be electronic – hard copy trial bundles are to be replaced with an electronic bundle of documents and/ or authorities (as required);
• Extensions of time – parties may consider that, in the current environment, a particular Court deadline should be extended. In addition to the standard position under CPR 3.8(3) – which allows parties to extend time limits by up to 28 days by prior written agreement, provided that any hearing date is not put at risk – it may be that the Court is willing to allow parties to agree an extension longer than 28 days in light of Covid-19 but that will be emerging law; and
• If a remote hearing is not possible, the case may need to be adjourned – for example due to the length of the trial, number of parties or location of the parties. This is likely to be seen as a last resort by most Courts who will want to keep the justice system functioning and maintain hearing dates.

Impacts of remote hearings: accessibility / public hearings

Hearings in the Courts and Tribunals are in most cases public in line with the fundamental principle of open justice. However, remote working may make public visibility of proceedings more difficult, particularly if the hearing is being made by telephone or video link between the parties, their representatives and the Judge. The Protocol makes a number of suggestions in order to ensure that public hearings remain public even where they are conducted remotely, including (a) relaying the audio or video to an open court room (b) allowing journalists to log in to the remote hearing and (c) live streaming the hearing over the internet.

Live streaming over the internet has already been used in a substantial multi-party litigation in the Commercial Court, which was streamed on YouTube as a result of COVID-19. 

Looking forward

We anticipate that there will be further changes to the Court process as the COVID-19 response develops. We understand that a number of updates to the Civil Procedure Rules are in consideration, and these may be published at short notice.

For the time being at least, and in order to provide certainty to businesses and individuals at this time, the Courts and Tribunals are continuing to operate as close to normality as possible albeit with increased reliance on technology. Businesses and organisations engaged in litigation, or considering whether to start claims, should not therefore assume that claims will be put on hold in response to the COVID-19 pandemic – access to justice is set to continue.   

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