Open justice direction published for remote hearings

Etherton: Time-limited change

A new practice direction clarifying when civil courts may derogate from the principle of open justice to conduct hearings remotely in private has been published today.

The Civil Procedure Rule Committee (CPRC) has also confirmed that it is “urgently” considering other possible rule changes as the civil justice system looks to cope with the coronavirus pandemic.

In the 116th update of the CPR, the Master of the Rolls, Sir Terence Etherton, and Lord Chancellor Robert Buckland have introduced practice direction 51Y (PD) as a pilot scheme under part 51 and will be formalised through a rule amendment “at the earliest opportunity”, a notice on the CPR website said.

It will remain in force for no longer than the Coronavirus Bill once it receives Royal Assent.

The PD says the court may exercise the power to hold a remote hearing in private where it is not possible for the hearing to be simultaneously broadcast in a court building.

“It may do so consistently with the power to derogate from the principle of open justice and may do so under the provisions of this PD in addition to the bases for doing so set out in CPR 39.2. Where such an order is made under the PD the provisions in CPR 39.2(5) do not apply.”

However, the court cannot conduct a remote hearing in private where arrangements can be made for a member of the media to access it.

Where there is a remote hearing in private, the court must, “where it is practicable to do so”, order that the hearing is recorded – ideally by video but at least by audio.

Available powers to order such hearings to be recorded, and subsequently broadcast, apply to the Court of Appeal (Civil Division) through The Court of Appeal (Recording and Broadcasting) Order 2013 and are expected to apply more generally through section 85A of the Courts Act 2003, which is intended to be inserted by the Coronavirus Bill.

Where a remote hearing is recorded, any person may apply to the court for permission to access the recording.

Meanwhile, amid calls from practitioners to allow parties to agree general extensions of time and also suspend CPR 3.9, the CPRC has issued a brief message to stakeholders.

It said: “Please be assured that CPR updates in response to the Covid-19 outbreak remain under urgent consideration. CPR updates are therefore likely to be necessary and at short notice.”

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