Final hearings and hearings with contested evidence in civil and family cases will “inevitably” be conducted using technology very shortly, the Lord Chief Justice has warned.
In his latest update on the courts’ response to the coronavirus, Lord Burnett said the default position now in all jurisdictions “must be that hearings should be conducted with one, more than one or all participants attending remotely”.
Where that was not possible, he said, “sensible precautions should be taken when people attend a hearing”. Those working in the courts are set to be within the scope of key workers who will be able to continue to send their children to schools.
He said the rules in both the civil and family courts were flexible enough to enable telephone and video hearings of “almost everything”.
“Any legal impediments will be dealt with. HMCTS are working urgently on expanding the availability of technology but in the meantime we have phones, some video facilities and Skype… Many more procedural matters may be resolved on paper within the rules.”
Given how long the pandemic will “suppress the normal functioning of society”, Lord Burnett said, “we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable”.
This meant final hearings and hearings with contested evidence would “inevitably” be conducted using technology very shortly.
“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.
“I would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.”
Professor Richard Susskind, who has led the push to online courts, tweeted today: “Some reassurance. Courts will close & judges will work remotely. I’ve spent my working life on this (see my book, ‘Online Courts and the Future of Justice’) & am confident judges can deliver just decisions working online. In E&W we have been preparing.”
Lord Burnett made clear that “we expect the full co-operation of the legal profession to facilitate telephone hearings”.
He added: “Indeed, the profession’s willingness to be imaginative in the use of remote technology is clear from discussions I have had with the president of the Law Society and chair of the Bar Council.”
The Lord Chief Justice provided outline guidance in his message , while HM Courts & Tribunals Service (HMCTS) has detailed  how it will use telephone and video hearings.
HMCTS has also listed its priorities  during this period: “In the civil and family jurisdictions, urgent work will include applications to suspend warrants of possession, injunctions and orders dealing with issues of care, abduction, emergency protection and debt, as well as breaches of injunctions and Court of Protection matters relating to vulnerable people.”
The Legal Education Foundation has issued a note on the safeguards that should be put in place  to ensure access to justice and open justice are maintained with telephone and online hearings.
This include delaying “non-urgent trials”; providing all parties in hearings facilitated fully by video link, Skype or telephone with “effective access to free legal advice”; requiring that all judgments given in cases that are held remotely are given in writing and made publicly available; and monitoring the impact of fully video hearings on “the ability of legal representatives to effectively communicate with their clients”.