Large law firms are willing to “reimagine what a Rolls-Royce services looks like in commercial litigation” as a result of Covid-19 as part of a long-term move in civil justice to more remote hearings, major new research has found.
Beyond commercial litigation, the report from the Civil Justice Council (CJC) found support for preliminary matters, interlocutory hearings and trials without evidence continuing remotely.
But the rapid review into how the courts have responded to the pandemic highlighted the particular problems that the stay on all possession proceedings has stored up, and CJC chair Sir Terence Etherton, the Master of the Rolls, has convened a working group to address it.
The research was led by Dr Natalie Byrom, director of research at the Legal Education Foundation, and in the space of five weeks her and her team analysed 1,077 responses to an online survey and 65 submissions, as well as court and other data, to produce a detailed 89-page report.
The vast majority of the responses were from professional users, and many felt the changes imposed on the system had “artificially” suppressed the numbers of litigants in person and vulnerable people participating in hearings during this period.
Respondents reported that measures mandated by the pandemic had reduced the availability and accessibility of legal advice, with the impact of reductions in advice disproportionately affecting those on low incomes.
“A number of respondents raised concerns that the economic climate created by the pandemic had caused legal need to rise, with implications for pressure on the civil justice system in the short to medium term.
“Even if these concerns fail to materialise, respondents reported that the backlog generated by the current stay in possession proceedings would pose an enormous challenge for the civil justice system.”
Further, the high rate of adjournments were a particular concern for the Bar, with responses from several circuit leaders “characterising the threat posed by the loss of income engendered by the crisis as ‘existential’”, especially for junior barristers.
The majority of hearings described by respondents (they were asked about their most recent) were audio; only 27% of hearings in the sample were fully video hearings, with Skype the most commonly used platform.
Lawyers reported (usually minor) technical difficulties in 45% of hearings, with video hearings causing more problems than audio ones – although lawyers with greater experience of remote hearings generally reported fewer technical issues in their most recent hearing.
Some 72% of respondents described their experience as positive or very positive, but most felt remote hearings were worse than hearings in person overall and less effective in terms of facilitating participation.
The report said that, subject to further research, the findings offered “tentative support for reserving remote hearings for matters where the outcome is likely to be less contested, where the hearing is interlocutory in nature and for hearings where both parties are represented”.
Responses from organisations and individuals with experience of working with vulnerable court users highlighted a series of concerns about the shift to remote hearings, including their problems with participating in them and communicating with their lawyers during hearings.
The researchers said the number of lawyers who reported lay parties and litigants in person having difficulties was “notable” given that the majority of hearings detailed related to higher-value cases, as these were more likely to be progressed during lockdown.
“The problems experienced by lay users and litigants in person reported in this study are likely to be amplified if remote hearings are expanded at scale to deal with matters more likely to involve vulnerable parties and litigants in person (such as housing and debt).”
On open justice, while media access to hearings worked “reasonably well”, access for members of the public, legal bloggers and representatives of non-governmental organisations was “more problematic”.
Looking to the future, the report recorded that large commercial firms – such as Mishcon De Reya, Hogan Lovells, Reed Smith and Freshfields Bruckhaus Deringer – advocated for the expanded use of remote hearings in commercial litigation, with limited exceptions relating to cases where foreign language interpretation is required.
“There was clear willingness and enthusiasm from commercial firms to reimagine what a Rolls-Royce service looks like in commercial litigation, with predicted benefits for the economy and the environment.”
In other areas of law, respondents recommended maximising the use of remote hearings in preliminary matters, interlocutory hearings and trials without evidence, particularly where both sides were represented. The majority of costs disputes were also felt to be suitable for remote determination.
Respondents were less positive about the use of remote hearings in longer cases, and cautioned against their use in hearings involving litigants in person
Practical suggestions to improve the conduct of hearings included improving the equipment provided to judges, developing the functionality of platforms used to conduct remote hearings to enable better document sharing, improving systems and support for preparing and filing e-bundles, and providing access to listings and case information.
Sir Terence said: “The report is the result of an astonishing effort by all involved to produce such an informative report in a very short period of time… I hope it will form a useful basis for further research and review in due course.
“The report makes a number of recommendations which we will consider carefully. In particular responding to concerns expressed by a number of consultees about the consequences of the current stay on housing possession claims ending. I have established a cross-sector working group, which is being chaired by Mr Justice Knowles, the chair of the CJC’s access to justice sub-committee, to help address these concerns.”
Dr Byrom said: “The CJC’s commitment to use the report as basis for informing further research and review is very welcome. The report highlights systemic deficiencies in the information that is currently available on the operation of the civil justice system.
“The findings underscore the vital need to invest in robust systems for capturing data in order to review the operation of the civil justice system and build the evidence base for effective practice.
“Improving the data that is collected is vital to make the voices of litigants in person and lay users of the justice system heard.”