Virtual Courts and Tribunals

Mon, 30 Mar 2020

A SHORT SUMMARY FOR LOCKDOWN WEEK 2

INTRODUCTION

This note attempts to summarise the current working practice for Courts and Tribunals in England and Wales: is the court or tribunal simply closed, open for certain business or operating new remote procedures?

This note mirrors a similar note on council meetings and planning appeals, of the same date.

Prior to the lockdown, events were already moving very swiftly.  On 16th March the Prime Minister announced that “now is the time for everyone to stop non-essential contact with others and to stop all unnecessary travel.  We need people to start working from home where they possibly can. And you should avoid pubs, clubs, theatres and other such social venues.”  On 18th March the Prime Minister announced that schools would close on Friday 20th March. On 19th March 2020 the Lord Chief Justice posted a message on the Courts and Tribunals Judiciary website in which he addressed the tension between the obligation to continue a vital public service with the challenges of “new ways of working forced on us the biggest public health emergency the world has faced for a century.”[1] The courts reacted quickly with new protocols for remote working, eg the Business and Property Court protocol[2].

By Monday 23rd March we reached the start of ‘Lockdown Week 1” when the Prime Minister converted his request for social distancing to an instruction: “From this evening I must give the British people a very simple instruction - you must stay at home.[3]

Here I seek to summarise the key events of Lockdown Week 1 and look ahead to the progress of remote hearings.  This across courts, disciplines and jurisdictions.  This is because the fundamental questions relating to fair, public hearings are common questions, albeit that the emphasis may change with the context.

LOCKDOWN WEEK 1

The main events in Lockdown Week 1 were:

Monday 23th March

The Lord Chief Justice reviews court arrangements because “Events have continued to move at great speed.”  “… to continue as many hearings as possible remotely.”

Protocol for Remote Hearings in the Family Court and Family Division of the High Court[1].  Other protocols and guidance follows for a long list of courts and tribunals[2].

Tuesday 24th March

 

Bar Council advised that barristers should not attend Court in person unless instructed in a part heard trial or an urgent Magistrates’ Court

 

Lang J hears a substantive JR by Skype for Business.  Hashi Mohamed appeared for the Council -written up here[3].

Insolvency and Companies List (Chancery Division) – general winding up list could not be conducted remotely – but see Yasmin Yasseri’s piece

Wednesday 25th March

Coronavirus Act 2020 received Royal Assent

 

PD 51Y – Video or Audio Hearings in Civil Proceedings

 

London (Central) Employment Tribunal – hearings postponed.  Telephone hearings may resume.

Friday 27th March

PD 51Z[4] – housing possession proceedings stayed for 90 days

 

Priority Courts Announcement by Ministry of Justice and HMCTS[5]

 

A financial list remote trial commences before Teare J[6]: ““The court has to be optimistic, rather than pessimistic. It is the duty of all of the parties to seek to co-operate to ensure that a remote hearing is possible.” 

 

THE CURRENT POSITION

Expanding on some of the above, and remembering that it is the events of only one week, the key points include:

  • A limited range of cases are being conducted in person;
  • From 30 March 2020, there will be 157 priority court and tribunal buildings open for essential face-to-face hearings. This represents 42% of the 370 crown, magistrates, county and family courts and tribunals across England and Wales. A further 124 court and tribunal buildings will remain closed to the public but open to staff and the judiciary;
  • On 27 March 2020 the Court of Appeal (Civil) & (Criminal), and the Queen’s Bench Division of the High Court were undertaking only urgent applications and hearings, and the counter is closed;[10]
  • In both the High Court and in the Family Court, the general message is that the work of the court continues under a new protocol which will itself be kept under review. The Court has adopted existing technology to meet its needs and has already successfully completed complex hearings with favourable outcomes in terms of participation by parties, public and press;
  • There is a terrifically helpful, detailed and practical paper by MacDonald J which addresses the use of ‘off the shelf’ remote communications platforms in family proceedings[11]. It is a long read, and all the better for it. It relates the positive outcomes of a number of remote hearings in various jurisdictions, including in Australia.  There is much to be learnt from it, whatever your area of practice.  The upshot is: “The reality is that for the foreseeable future remote hearings will become the norm and they must become the norm immediately.”
  • Video or audio proceedings may be broadcast so that the public may see and hear the proceedings and the court may keep an audio-visual copy[12], but it is an offence for a person to make or attempt to make an unauthorised recording[13]. This applies to both the courts and also to the First Tier Tribunal;
  • Any person required to attend a Magistrates’ Court is to be taken to be in attendance if taking part via live video or audio link;[14]
  • There is now a pilot scheme to give a discretion to civil courts to hold a remote hearing, brought into effect by a technical amendment to PD51[15]. A civil 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. But, a court may not conduct a remote hearing in private where arrangements can be made for a member of the media to access the remote hearing;
  • Consistent with s.85A of the Courts Act 2003, as inserted by the 2020 Act where a remote hearing is either audio or video recorded, any person may apply to the court for permission to access the recording;
  • The general rule is that a hearing is to be in public[16]. A private hearing may be justified for any reason which the court considers necessary to secure the proper administration of justice[17].

CONCLUSION

The Family courts and the Property and Commercial Court have moved quickly.  Elsewhere in the High Court, including in the Admin Court, work is now continuing remotely.  The task is more substantial and problematic in the criminal jurisdiction, not least in the Magistrates’ Court which is not currently equipped in the same way as some of the superior courts.  But in all respects, this is enormous change, conducted at pace.  Its effects will leave a lasting imprint.  But change will continue, as is evident from the fact that we are already on version 2 of the Family Courts protocol.  Last week we saw a tech-transition but with the same skills to be deployed, one of which is the ability to adapt.

 

RICHARD KIMBLIN QC
28th March 2020

Credit: I am grateful for discussions with the ever-knowledgeable James Corbet Burcher, who attended Bar Council this morning on related topics.  With his characteristic generosity, he helped me out with some of the references above.

[1] https://www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/

[2] https://www.judiciary.uk/wp-content/uploads/2020/03/Civil-court-guidance-on-how-to-conduct-remote-hearings.pdf

[3] https://www.gov.uk/government/speeches/pm-address-to-the-nation-on-coronavirus-23-march-2020

[4] Now on version 2 - https://www.judiciary.uk/wp-content/uploads/2020/03/The-Remote-Access-Family-Court-Version-2-Final-25.03.20.pdf

[5] https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/

[6] https://www.linkedin.com/posts/hashi-mohamed-82b5515b_activity-6649281864446033920-8cKw/

[7] https://www.judiciary.uk/announcements/117th-practice-direction-update-to-the-civil-procedure-rules-coronavirus-pandemic-related/

[8] https://www.gov.uk/government/news/priority-courts-to-make-sure-justice-is-served

[9] https://www.3vb.com/knowledge-hub/news-detail/covid-19-update-3vb-take-lead-role-in-ground-breaking-financial-list-remote-trial

[10]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876283/HMCTS_Ops_Update_-_RCJ_27_March_2020.pdf

[11] https://www.judiciary.uk/wp-content/uploads/2020/03/The-Remote-Access-Family-Court.pdf

[12] Sch 25 of the 2020 Act, inserting s85A(1) in the Courts Act 2003

[13] Sch 25 of the 2020 Act, inserting s85A(2) in the Courts Act 2003

[14] See S57ZB Magistrates’ Court Act 1980 as inserted by Sch 26 of the 2020 Act

[15] https://www.judiciary.uk/wp-content/uploads/2020/03/CPR-116th-PD-Update-video-or-audio-hearings-for-coronavirus-period.pdf

[16] CPR 39.2(1)

[17] CPR 39.2(1)(g)

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