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Judges warn over parties’ conduct in remote hearings

Etherton: MR issues guidance on civil cases

Courts and tribunals have made “remarkable” progress in dealing with remote hearings during the coronavirus crisis, but there are concerns about the behaviour of parties, the senior judiciary has said.

They also told civil judges that video hearings have proved more tiring than ordinary hearings, so lists can be about half their usual length.

In a joint message [1], Lord Chief Justice Lord Burnett, Master of the Rolls Sir Terence Etherton and President of the Family Division Sir Andrew McFarlane praised the “remarkable” response of the courts and tribunals to the coronavirus crisis, with around 40% of hearings across all jurisdictions having gone ahead one way or another.

Writing to circuit and district judges in the civil and family courts last week, they said it was time to reflect on the experience of remote hearings since the lockdown announced on 23 March and whether any changes needed to be made.

Noting that dealing with anything “not intrinsically simple” by phone appeared to be less satisfactory than using video, they said “we suspect that we have all surprised ourselves by the progress that has been made in such a short time”.

The overarching criterion was to provide a fair hearing and the judges said that, alongside the many positive stories, there were reports of “negative experiences either about the hearing itself or its fairness”.

They explained: “Last week, there were reports that using technology to conduct hearings was unusually tiring, particularly those which were relatively long.

“Over the course of the last few days we have been informed of a growing problem of participants not respecting the reality that although they were not physically present in a court room, they were taking part in court proceedings with all the constraints on behaviour that implies. There have been instances of judges being shouted at by litigants.”

There have also been reports of problems with the availability of papers.

The main concern during the crisis were hearings with oral evidence, the message said, as those involving submissions only could be handled remotely.

The judges said that if all parties opposed a remotely conducted final hearing, this was “a very powerful factor in not proceeding with a remote hearing”. But if parties agreed to one, “this should not necessarily be treated as the ‘green light’”.

Video/Skype hearings were likely to be more effective than telephone, they continued, while parties should be told “in plain terms” at the start “that it is a court hearing and they must behave accordingly”.

There were also specific considerations listed for family and civil cases, with the latter from Sir Terence stressing that listing remained a matter for the judge.

“He or she should not feel under any pressure to list a certain number of remote hearings every day. Video hearings have proved more tiring than ordinary hearings, so lists of about half their usual length may well be appropriate.”

There were “unwelcome consequences” of postponing hearings of any sort, but the crisis was such that it was “inevitable that many will have to be”.

The message said judges should be guided by the civil listing priorities published by the courts service, but “there will always be some cases outside those categories which are urgent and will need to be heard”.

They should also tread particularly carefully where litigants in person, or parties/witnesses for whom English is not their first language, were involved.