Locked down, but not out: How the Courts rose to COVID-19’s challenge

Published: 22/4/2020

"It will not be business as usual". These were the understated words employed by the Lord Chief Justice to herald the judicial system's impressive overhaul in response to the upending of civilisation by the Coronavirus pandemic, and which may yet see in a seismic shift in the way the courts of England and Wales conduct their business in the future.

Though it may not be business as usual, the courts would certainly seem to have adopted an attitude of 'business must go on' and in contrast to many European jurisdictions, to be making every effort willingly to embrace the technological solutions that exist to ensure that as much as can be done, is being done.

The Courts' stance

Following a sequence of tonally consistent verdicts, it is increasingly clear that the courts will take a purposive approach to ensure that the business of administering justice during these tumultuous times is continued. The following review of recent rulings, in which the move to remote hearings was considered, shows that it will take much to convince a court that a matter should be significantly delayed by the effects of COVID-19.

Offering possibly the clearest judicial guidance to date, in Re Blackfriars [2020] EWHC 845 (Ch), on 1 April 2020, the High Court was faced with the question of whether a five-week trial, arranged for early June, should be adjourned in light of the Coronavirus pandemic. On 6 April 2020, Mr John Kimbell QC, sitting as a Deputy High Court Judge, determined that the trial should go ahead, and that the parties should make best endeavours to coordinate so as to be able to carry out the hearing remotely. In doing so, and in referring to the quickly changing legal landscape and previous cases, he set out the considerations a court would have in coming to a decision as to whether an adjournment was appropriate.

The applicants were the joint liquidators of One Blackfriars Limited. They were seeking damages of over £250 million for the supposed mishandling of the administration of One Blackfriars Limited, alleging that its main asset was sold at an undervalue by the respondent administrators, and that had the respondents complied with their duties a corporate rescue may have been achieved.

Following the introduction of restrictions by the Government on 16 and 23 March 2020 to deal with the Coronavirus pandemic, the applicants, at a pre-trial review, applied orally to adjourn the upcoming five-week trial.

The application was brought under four grounds:

  1. That proceeding with the trial would be contrary to the Prime Minister's instructions on 23 March 2020 to stay at home except in limited circumstances;
  2. It would expose participants to unacceptable health and safety risk;
  3. The technology was not sufficient to allow the trial to proceed; and
  4. There was a real risk of unfairness in conducting the trial remotely.

In refusing the application, Mr John Kimbell QC addressed each of the four grounds in turn:

1. Following his address on 23 March 2020, the Prime Minister's instructions have since been codified and supplemented with actionable guidance from the judicial system:

(a) The Coronavirus Act 2020 was thereafter enacted, on 25 March 2020, and sections 53 to 56 expanded the remit of technology and addressed the 'open justice' issue inherent in remote hearings.

(b) On 25 March 2020, Practice Direction 51Y was signed, confirming the court discretion to pursue remote hearings in private and clarifying its ability to enable access to the hearings by the public.

(c) On 26 March 2020, the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 were made. Reg. 6(2)(h) provided that individuals may leave home "to fulfil a legal obligation, including attending court… to participate in legal proceedings" and Reg. 7(d) provides that two or more people may gather in a public place "where reasonably necessary… to participate in legal proceedings or fulfil a legal obligation."

(d) The Lord Chief Justice, on 19 and 23 March 2020, published messages to Civil and Family Court judges confirming that the courts were "flexible enough to enable telephone and video hearings of almost everything" and that the "default position now in all jurisdictions must be that hearings should be conducted with one, or more than one, or all participants attending remotely."

(e) On 26 March 2020, a revised 'Remote Hearing Protocol' was published, confirming that remote hearings are now the norm and all parties must proactively seek solutions to their continuation.

In light of the above, there was ample evidence that carrying out the trial remotely was in line with government guidance.

2. Although clearly an important consideration, despite the fact that some participants were vulnerable persons and some experts had caring responsibilities, the lack of concrete evidence, the fact the trial was in June and that there was time to deal with such health and safety concerns meant this did not warrant adjournment.

3. With respect to technology, this was a weak point in light of the fact that two trials had already, by this time, been conducted remotely and successfully (and which are discussed below). However, important issues were raised, such as the necessity of testing ahead of time, ensuring internet connectivity was appropriate and ensuring e-document usage was possible at all locations. These were matters on which significant coordination between the parties would be expected.

4. Both the challenges and upsides of a remote hearing would apply equally to both sides and as such there would be no unfairness.

In light of the above findings, the fact that an adjournment would not see the trial resumed until June 2021 and to ensure consistency with the overriding objective, there should be no adjournment. The application was refused.

In support of this verdict, and referenced by the judge in Re Blackfriars in rejecting the third ground, are two further cases that both highlight the assertive approach the English courts are taking during the pandemic and set out some further guidance on what parties must consider in carrying out remote meetings.

First, in the case of National Bank of Kazakhstan & Ors v the Bank of New York Mellon & Ors, on 19 March 2020, Mr Justice Teare, in deciding an application to adjourn the trial for 14 days, also noted the guidance given by the Lord Chief Justice. He observed that "there are other trials fixed for 14 days from now. Simply to move this 14 days is not necessarily possible." He concluded that "having regard to the need to keep the service of public resolution of disputes going, it is incumbent on the parties to seek to arrange a remote hearing if at all possible." Thus, the starting point is that hearings will be carried out remotely, and it is for the opposing party to convince the Court otherwise.

As Teare J was making his ruling, a concurrent trial in the Court of Protection was successfully going ahead, as a legal first, via Skype for Business. This case involved a three-day hearing, 11 witnesses, three experts and two journalists, spread across the breadth of England. The judge was extremely positive stating that "the hearing proceeded almost without a hitch" and that "in the current national crisis, it must be expected that hearings will be conducted remotely in this way as a matter of routine practice." His only complaint, which will serve as an important lesson to all those looking to conduct proceedings in this manner, was that some of the recording files became corrupted due to their size and he, therefore, stated "the lesson is that a sequence of recordings should be made, none exceeding about 30 minutes."

The Court of Appeal has also had its say. In Teeside Gas Ltd v Cats North Sea Ltd & Ors [2020] EWCA Civ 503, carried out using Skype for Business on 24 and 25 March 2020, Lord Justice Vos took the opportunity, upon agreeing with Lord Justice Males' verdict in favour of dismissing the appeal, to address the manner in which the hearing had been conducted. He noted that 19 individuals at any given time had been in remote attendance and that they had responded agilely to the coming into force of Practice Direction 51Y, accepting the position that the hearing would need to take place in private "where it is necessary to do so to secure the proper administration of justice." Vos LJ commended all parties for demonstrating "the flexibility of the arrangements that can be made, with the cooperation of the parties and their lawyers, to continue to deliver fair, open and transparent justice in a period of national difficulty."

It would appear that this advice has been taken to heart. Every day the cause list provides evidence that parties are taking heed of the courts' clear instruction to find a collaborative way forward and that Re Blackfriars-esque protestations are fading into ignominy. From an international perspective, technology has been enthusiastically embraced and simply being in a different time-zone is increasingly perceived as little more than a hurdle to overcome and unlikely to limit the courts' enthusiasm for pursuing complex cross-border matters.

It may be noted that this focus on technological solutions to international hearings is not new. In Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2019] EWHC 3300 (Comm), in which a factual witness, during remote cross-examination, had to travel from Manila to Singapore due to poor internet connectivity, the courts showed the lengths to which they were already willing to go to ensure that hearings continued and such a practical issue was not enough to lead to an adjournment.

Practical lessons to date

Certain practical guidance can be gleaned from the above cases:

  • Adjournment applications will not be viewed favourably: in light of the legislation and guidance issued, the starting point for any court is that the hearing will proceed, and it is for the applicant to convince otherwise.
  • Attend remotely: this will apply to any and all participants.
  • Be familiar with the various technologies available: Skype for Business is a trusted solution of the courts, but there are numerous others that will be considered.
  • Ensure bandwidth is appropriate: numerous of the judgments decried poor bandwidth as the real enemy. With witnesses often in disparate locales, prior testing is of paramount importance.
  • Understand remote etiquette: know how to mute or screen share and explain this at the outset.
  • Utilise appropriate document sharing software: ShareFile and other tools allow easy and secure sharing of documents where producing hard copies is now difficult.
  • Record in 30-minute segments: judges will have little sympathy should longer recordings become corrupted.
  • Arrange streaming locations: Although the aim should be to ensure the hearing can continue from anywhere, preparing locations for witnesses' attendance may ensure connectivity issues are avoided.
  • Ensure hardware is appropriate: there is a focus on the software in these matters, however, with the need to view video and documents simultaneously, two screens are likely to be needed in each location.
  • Keep up to date: the situation is changing rapidly and court users should stay abreast of the latest information as it may become immediately relevant, even during hearings.
Concluding remarks

The courts have taken a consistent approach that their vital business will continue. In this, the courts are primarily concerned with what is practicable. All judgments noted it was of paramount importance that the technology not prove too limiting a factor, focusing on issues such as bandwidth and selecting user-friendly solutions.

Courts also prize flexibility. In a fast-moving situation, the mere fact that the landscape has changed may not be enough to warrant adjournment; in both National Bank of Kazakhstan and Teeside, parties were expected to take new guidance into account. Court attendees must remain vigilant for sudden changes in the law, which may affect the case they are putting forward.

As remote hearings are becoming established, attention will start to turn to what the future might hold. Many commentators predict a wholesale acceptance of remote hearings, but where they had once been the fall-back option – the last resort when your key witness was stranded in Manila – will we now usher in a grand new era of paperless trials and top-half working wardrobes? This is a matter of keen speculation and, unarguably, a prolonged period of social distancing will increase the chances that remote appearances become mainstays of the dispute resolution process.

Nevertheless, whilst recent judgments have praised remote technology, they have studiously avoided any suggestion that it become the status quo. Indeed, Vos LJ arguably purported to tie their use to the particular circumstances of this global pandemic; the implication arguably being that once extricated the old order may be hastily resumed. When we consider the speed, quickly developing technologies and environmental benefits, such regress would be something of a missed opportunity.

Whichever way the future winds blow, what is undeniable is the speed and efficacy with which the courts have adapted to an extraordinary scenario and for which they, and all contributing partners, deserve praise.

This blog was authored by legal assistant Roshan Laidlay, with guidance from partner Lucinda Orr. 

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