Remote hearings are [probably] not the new normal

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.

Preparation
  1. Conduct dry runs to test the technology in advance of the hearing
  2. Provide sufficient notice of format so all participants can ensure suitable technology is in place
  3. Allocate more time before the start of each hearing to deal with connectivity issues
  4. Provide direct contact details of parties and judge in advance of hearing
  5. Have a backup line of communication
  6. Vet the quality of e-bundles
  7. Give longer notice of which judge is going to hear the case and enable hard copy bundles to be delivered
  8. Allow parties to say whether they easily use the chosen platform or not
Guidance
  1. Clearer guidance on e-bundles and filing
  2. Guidance drawing attention to technical incompatibility issues or prior software requirements
  3. Clearly specify who is responsible for setting up any remote hearing
  4. Provide more detailed guidance regarding how to connect to hearings and how to resolve common connection issues

 

Technology
  1. Use more up-to-date platforms (many petitions for Zoom or Teams rather than Skype for Business)
  2. Use platforms compatible with both PCs and Macs
  3. Invest in remote access areas for clients with no access to technology and broadband
  4. Provide standardised AV package for judges, including high quality webcam, microphone and second screen
  5. Ensure that all judges are equipped with a reliable internet connection
  6. Ensure all parties have more than one screen to participate in hearing and view documents
Conduct of the hearing
  1. Set ground rules at the start of the hearing
  2. Slow the pace of the hearing and allow parties to re-start submissions where connection is lost
  3. Develop consistent standards of etiquette to ensure parties do not speak over one another (and a standardised approach to muting participants)
Assistance
  1. Provide a dedicated direct helpline for court users
  2. Provide contact number for a court officer

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

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