Posted by Sian Stanton, business developer at Litigation Futures Associate Allianz Legal Protection
Since Covid-19, much about the way we work, live and socialise has changed. We’ve seen aspects of our lives shift towards digitalisation that we never thought would happen – at least any time soon. This has certainly been felt in the legal world and has worked well in some areas, such as working from home and virtual medical assessments.
Legal professionals were effectively thrown into the deep end when it came to conducting hearings remotely. Lockdown has caused an astonishing backlog of half a million cases in England and Wales, so to avoid adding to this any more than necessary, the courts, law firms and chambers moved quickly into a virtual environment.
Like most, this was smoother than originally anticipated but did not come without its challenges, many of which were explored in the recent Civil Justice Council report.
We’ve all been the victim of technological failures – from slow rural broadband, system glitches, privacy and data security concerns – probably never more so than in the last five months. Legal hearings are no exception.
A fair trial
The right to a fair trial is engrained as a fundamental principle of the rule of law and a foundation of a democratic society.
There are many reasons why it was the right decision to move the litigation process online, even for the duration of lockdown when physical trials cannot go ahead. Ensuring that individuals were able to have access to justice in a timely manner is vital to both individuals and society. However, there have been unintended consequences to this that could be deemed unfair.
This is particularly pertinent in complex cases or those involving vulnerable people. Thankfully, the judiciary seem to be making sensible decisions in this area with Mr Justice Johnson, in SC v Southampton NHS Foundation Trust, noting that while a hearing could be held remotely, having regard to the “likely length of the hearing, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence, a remote hearing would be undesirable”.
In the UK, there are almost two million people living with sight loss, which presents an obvious challenge to attendance at a video hearing. Those living with other physical disabilities may also lack access to the adaptive technologies which are needed to attend and participate in remote hearings.
Attending court whether remotely or not is an intimidating experience for most. Some people may feel under pressure to say that they understand and agree with what’s going on during a hearing, but in reality don’t fully appreciate what’s happening. Sometimes only when the written judgement is provided, the outcome is clear to them.
This can be not only due to mental health issues but also educational disadvantage and a host of other vulnerabilities that are prevalent in the UK.
The National Literacy Trust reported last year that 5.1 million adults in the UK are functionally illiterate. Asking those individuals to keep up with the pace of a hearing and referring to documents without being able to check and explain the relevant points may be putting them at a serious disadvantage.
Those whose first language is not English may find themselves more disadvantaged over the telephone without those other non-verbal cues that can be very helpful in understanding proceedings.
In addition, of all households in the UK in 2019, 7% did not have access to the internet. And it’s been suggested that remote hearings has a disproportionate effect on those with lower incomes.
Assumptions are made not only that people have internet access but also that they have more than one internet connected device. This is important as litigants may not be able to give their legal representative instructions or to ask for clarification via text or email if the only device they have is being utilised to broadcast or dial in to the hearing itself.
Here to stay?
Preparation is key to the success of remote hearings. Clear guidance is needed to homogenise the process across those regional variations that were necessary in the beginning of the Covid-19 changes.
Virtual court technology is welcome to supplement the physical court not to replace it, so it’s fair to say that we won’t see the back of the courts as we knew them before.
However, this has provided an excellent opportunity for us to test the waters of remote hearings and it’s likely that some of the processes will move to a more digital approach in what has been a vastly speeded-up modernisation of the court system.
Those procedural hearings where you don’t need the client to be present are a great example of what could remain virtual. This would have the added bonus of reducing waiting times for more complex matters as well as providing options to better manage the work/life balance of legal professionals.
It is, however, critical for all professionals involved to ensure that the system does not evolve past its most vulnerable users. We all need to be alive to a client who may need extra support to ensure they remain an active participant in their own quest for justice.