The show must go on

Articles | Wed 15th Apr, 2020

The coronavirus has caught many businesses, governments and indeed the court system napping. No one has had in place a contingency to deal with a pandemic where lockdown of its citizens was foreseen. No worst-case scenario was ever prepared for.

The civil court system has found itself playing catch up in relation to modern technology, in particular video conferencing and remote hearings either by way of telephone or video using third party applications. The virus has caused the civil court system to go from crawling to Olympic sprinting in a matter of weeks. Many practitioners will be familiar with the fact that in the county court system many of the courts do not even have the technology to play CCTV recordings.

That said the courts have reacted quickly and various guidance has been handed down from Government, various judges and circuit leaders as to how to conduct remote hearings. The latest judgment by Mr Justice MacDonald in relation to remote access to the family courts is of much relevance to those practicing in a civil forum as well as a family one. Much of that guidance one would suggest would be common sense to anyone conducting a hearing but it is still worthy of reiterating.

Two recent cases have highlighted that the wheels of the civil justice system will continue to turn albeit on a different path. In the case of Re Blackfriars Limited [2020] EWHC 845 Deputy High Court judge Mr John Kimbell QC refused an application for an adjournment because of the COVID-19 pandemic and ordered the parties to cooperate and explore ways in which a remote trial involving internet based video communication platforms and electronic trial bundles could take place. The trial was listed for five weeks commencing in June 2020. The Judge also commented that if the matter was adjourned the earliest the trial could be rescheduled was early 2021 with the case going into a general list in June 2021. The Judge dealt with both the Coronavirus Act and the Regulations in detail. He stated that it seemed very clear to him that both the ‘The Regulations’ and ‘The Act’ by making specific exemptions to the two major restrictions on gatherings and on movement, for the benefit of court proceedings, that the legislature was sending a very clear message that it expects the courts to function so far as they are able to do so safely by means of increased technology. This referenced Section 53 to 56 and Regulation 6 and 7.

The Judge further referenced the decision by Mr Justice Teare on the 19^th March 2020 in the case of National Bank of Kazakhstan and others v Bank of New York Mellon and others [2018] EWCA Civ 1390 when he said “ the courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now in all jurisdictions must be that a hearing should be conducted with one, more than one, or all participants attending remotely”.

The Judge refused to grant the adjournment and ordered the parties to continue to prepare for trial and co-operate and explore ways of holding the trial in accordance with the Lord Chief Justice’s Guidance and the Remote Hearing Protocol.

One of the submissions in this case was that proceedings would be unfair if done by remote means, and whilst this was dealt with extremely succinctly by reference to the ‘Equality of Arms’ principle, it was considered more fully in the case of Jankowski v Regional Court of Turun, Poland [2020] EWHC 826, which was heard by Mr. Justice Fordham on the 25^th March 2020, and was an extradition appeal. The hearing was conducted using special arrangements which had been necessitated by the Coronavirus pandemic. The Judge sat robed in Court 2 at the Royal Courts of Justice, the court building was open, and the cause list recorded that the hearing was to be by way of telephone conference. Both counsel addressed the court as they would have done had they been physically present, also present on the call were the appellant’s solicitor, the appellant himself and an interpreter. All parties were content that the hearing was by way of telephone as opposed to any other third-party video conferencing facility. The Judge considered that there had been no derogation from the open justice principle nor had there been a need to conduct an oral hearing in open court and nor had there been any derogation from the rights of the parties. He also considered that had there been any derogation that it was necessary, justified and proportionate in securing the proper administration of justice. The Judge was further satisfied that the mode of hearing although unusual, caused no prejudice to any person or their interests, nor detriment to justice or the public interest.

The courts are already being seized of litigation flowing from the Coronavirus and many more claims, including group litigation regarding cruise ships, ski resorts and other holiday venues, are likely to be lodged. It is likely that participants to trials will be spread far and wide following the relaxing of restrictions and hearings will need to be carried out via remote means.

It would seem that the UK jurisdiction has moved extremely quickly in quashing any likely arguments as to whether such hearings should firstly take place and are indeed fair. It seems that the answer to both is yes, and that the show must go on.