The CJC-sponsored research project into experiences of remote civil court hearings reported this morning. The investigation into court users’ experiences was carried out during the first half of May and over 1,000 responses were submitted. Among its tentative findings is that largely procedural or interlocutory matters appear to lend themselves better to remote hearings; fully contested substantive issues perhaps less so.

The post-consultation report runs to 89 pages plus a 53 page appendix, both of which can be accessed via the CJC press release. Responses submitted to the researchers were dominated by those from legal practitioners and, as the report points out “the findings from this study cannot be generalised to the wider population of court users”.  It follows that any summary here inevitably cannot address all the detail and nuance and will pick up only the broad points in the research. Those appear to include the following:

• few remote hearing with litigants in person amounting to only around 10% of the sample
• technology problems were reported in over 40% of remote hearings (with more difficulties in full video hearings)
• 60% of the sample of nearly 500 remote hearings were audio-only hearings, 27% were fully by video and, at 40% of the sample, personal injury claims were the most frequent case type
• just over 70% of lawyers reported experiences as positive or very positive, although despite this finding most reported that remote hearings were less satisfactory and less effective than hearings in person
• remote hearings were generally more tiring than conventional hearings, especially if fully by video, and may not necessarily be cheaper to take part in
• respondents recommended use of remote hearings for preliminary issues, interlocutory matters and costs disputes, particularly where both sides are represented, and
• variations in practice and technology platforms across regions and particular courts was described as a “persistent concern”

The experience to date across BLM of remote hearings in England & Wales generally reflects these points.

While it is clear that there has been a huge effort in the last ten to twelve weeks by judges, court staff and practitioners to adapt to remote hearings, there are real practical difficulties and fewer matters are being listed, leading to an ever-growing backlog which will have to be dealt with when the COVID-19 pandemic recedes. It would be entirely unfair to regard all the judicial guidance to date and the rapid integration of technology in the courts as ‘a sticking plaster’, but it is certainly not ’the new normal’ nor is it anything like the fully-fledged online court envisaged by the CJC and the MoJ alike (and spearheaded by Briggs LJ, as he then was).

Whether by coincidence or by design, Professor Susskind – a leading advocate of the online court – gave evidence to a Parliamentary Committee earlier this week and warned policymakers not to “take English justice system and drop it into Zoom”. He recommended instead reflecting carefully on the current practice of remote justice, describing it with some understatement as a “major unscheduled pilot” of remote hearings.

The new findings of the CJC-sponsored research into remote hearings in civil cases are consistent with those from a similar exercise in family matters carried out just a few weeks earlier. This suggests at the very least that common solutions for improving experiences in remote hearings could be implemented across both jurisdictions.

The CJC report includes the table below which sets out some very practical areas for possible improvement in remote hearings. It should be hoped that these are addressed by court users and the court service as quickly as possible in order to ensure and improve access to (remote) justice during the uncertain duration of the present crisis.

Alistair Kinley, Director of Policy & Government Affairs
alistair.kinley@blmlaw.com