Remote hearings in civil cases cannot just become ‘new normal’

Law Society: High Court and CA hearings working well

It is “vitally important” that remote hearings are not accepted as the ‘new normal’ in the civil courts after the coronavirus pandemic passes without substantial work on the quality of justice delivered, the Law Society has warned.

It also voiced “particular concerns” about the impact of remote hearings in civil cases on litigants in person (LiPS) and vulnerable people.

Responding to the Civil Justice Council’s rapid consultation on the impact of Covid-19 on the  justice system, Chancery Lane said: “During an emergency situation, such as this one, it is only right that certain concessions are made in order to allow the wheels of justice to keep turning.

“However, it is vitally important that this ‘new normal’ is not accepted as a permanent way of accessing and upholding justice in the future unless careful monitoring, due process and robust evaluation is carried out, and gives assurance that the quality of justice is not being impaired.

“It is crucial that courts are able to re-open once it is safe to do so.”

The response said the hearings that worked best seemed to be those that were “reasonably short and straightforward, where the parties are represented and where those involved have prior experience of using the courts”.

“Careful consideration should be given to whether conducting cases remotely is appropriate for those which are complex and involve litigants in person and lay witnesses, those where the credibility of a participant is in question, those where live evidence is required, and those involving vulnerable parties.”

Court of Protection hearings involving individuals who lacked capacity were “not typically suited to remote hearings”, nor were mental health tribunals.

“This is exacerbated if certain professionals are also not able to examine the person due to social distancing.”

The society said cases in the High Court and Court of Appeal seemed to be functioning “very well”, probably due to better technology and greater use of lawyers.

However, issues were “more apparent” in the county courts: “One particular issue is that there is often very little notice that a hearing will be conducted remotely, or whether it is going ahead at all.

“Some hearings are being adjourned on less than 24 hours’ notice, after front-loaded costs have already been incurred.”

The society said county court listing priorities were “useful to a certain point” but the different categories were too general and “often have no co-relation to which hearings are going ahead which often can cause confusion”.

It had “particular concerns” about vulnerable parties. “If people cannot access the internet either due to inadequate hardware, software or internet connection, or if those with legal needs do not have the necessary legal, digital language or physical capabilities, there is a risk that access to justice will be exclusive and qualified.

“There should not be a presumption that all court users will be digitally knowledgeable and able to participate in remote hearings without training or an audit of the technology at their disposal.”

The response went on: “A client using a smartphone in a public place in order to use public wi-fi will have an entirely different experience to a legal professional who may have access either to quiet office space or private space at home with adequate internet connection.

“The issue of confidentiality in these circumstances is also a consideration.”

The society said LiPs may feel more “at ease” without having to go into a courtroom, but “they also may struggle to understand new virtual procedures, where “even some solicitors” were struggling.

“Overall, litigants in person, particularly when facing a represented party or institutional litigant, are not well placed to participate in remote hearings effectively.

“There is a risk that, as the pandemic continues, there may be more litigants in person using the courts in some areas of law. For example, immigration appeals are often privately funded and with new procedures causing a rise in costs, more individuals may be forced to represent themselves.”

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