The Commercial Court has been able to carry on largely as normal while operating remotely, with interlocutory hearings likely to stay that way for some time at least, it has emerged.
Mrs Justice Cockerill told this month’s Commercial Court Users Group meeting that judges, court staff and users were “actively thinking” about whether to keep remote or at least hybrid hearings as a default position “or at least an often used option for some types of hearings post Covid”.
The Chancery and Queen’s Bench Divisions are having similar discussions.
This is in line with the recent Civil Justice Council review of the response to Covid-19, which found that large law firms were eyeing up a long-term move to more remote hearings.
The report found support for preliminary matters, interlocutory hearings and trials without evidence continuing remotely across the civil system.
According to the newly published minutes of the users group meeting, Mr Justice Jacobs predicted that “larger trials and hearings with key witness evidence” would be the first to return to in-person hearings.
“Jacobs J also expressed the view that interlocutory hearings were more likely to be carried out remotely for some time and, noting the Chancellor’s recent speech to Chancery Bar Association, we should probably assume that we will not be going back to exactly where we were before.”
Mr Justice Teare reported that on only four occasions since lockdown has a trial proved impractical, meaning the Commercial Court has “almost no backlog of work”.
He added: “Interlocutory hearings have continued on the dates that have been fixed, Friday lists have been just as busy as before lockdown, though the practicalities of navigating multiple remote hearings means that there is an even greater need to keep to time estimates.”
Cockerill J said there has been a lower number of trials, but this was down to higher rates of settlement – there have been more Tomlin orders issued in the first five months of this year than in the whole of 2019 – but she said the settlement rate was not triggered by the UK lockdown.
“It appears to have increased in January, potentially reflecting Covid-related uncertainty globally rather than merely reflecting the situation in the UK. That could well be a reflection of the fact that the court’s business is international.”
The minutes said the take-up of hybrid hearings – part live, part remote – “has not been enthusiastic to date”.
Lady Justice Carr raised the question of whether there would be a level playing field if one party was in person and the other side was being heard remotely – she suggested it would not.
The minutes recorded: “It was generally agreed that it would not, however, Baker J pointed out that that might be the case in some matters in the Court of Appeal Criminal Division.”
Teething issues with remote hearings included concerns that they were too informal. It continued: “There does seem to be a loss of some of the non-verbal communication and information that is picked up in c Courtroom. The style of advocacy is different as the judge and the advocate seem to be in ‘a bubble’.
“Most of the counsel are now taking instructions via WhatsApp which on occasion can be somewhat distracting for those taking part in the hearing.
“Parties who haven’t got ‘speaking parts’ seem to be interacting more freely amongst themselves, which again can be distracting for others. There is a learning curve on this aspect.
“There have been one or two incidents where despite warnings participants have photographed proceedings, but these are hopefully being ironed out.”
The group said it could be acceptable for witnesses to give evidence from the solicitor’s office – so as to assist with technical issues – but that the presence of a solicitor for the other party may need to be accommodated.
“Duncan Matthews pointed out that this was routinely happening in arbitration. Most people would take the view that it would be obvious if witness were being coached. He said that simple measures such as a well-placed camera would allow the judge and other side to see the whole of the witness’s room on video.”
The minutes said there was unlikely to be more guidance on e-bundles as that from the judiciary and Commercial Bar Association was sufficient: “The judges would find it very helpful if the users followed the guidance i.e. bookmarking, ensuring bundle numbering matches the PDF pages.”
Research published earlier this month showed that High Court activity has already recovered to pre-Covid-19 levels following a sharp slump during the height of the outbreak.