Coronavirus and the Acceleration of Remote Courts

April 16, 2020

We are all finding different ways to do things in this new world of lock-down. For some working from home is an easy enough transition, swapping the desk for the kitchen table and for most tasks – the usual run of emails, telephone calls, preparation of documents or carrying out of research – the transition is quite simple and ultimately little different. What though about attending court?

There has always been a certain theatre to such an attendance. The putting on of the court garb, be that simply the “hire and fire ’em” suit or the gown. It is part of the ritual; part of the preparation; the putting on of armour and the adoption of the “court going” persona.

All that is a little different when the Court attendance is a remote one and by video link rather than in person and that attendance is in effect from your study!

I attended my first remote hearing this morning. It was nothing too dramatic, a directions hearing in a clinical negligence case. The issues for consideration were not particularly controversial nor contentious. Nevertheless, to the parties, it was an important hearing. Its purpose was to set out the process by which the case was going to be determined and to narrow the issues for that determination. The old adage is that justice delayed is justice denied and the fact that this hearing could take place by video link meant that the case could be moved forward when it would otherwise have stalled.

For hearings like this, where the issues are narrow, there are no witnesses and one is not dealing with matters of great contention, a video hearing is a perfectly acceptable substitute for in-person court attendance. The same is unlikely to be true where the need for human interaction and dynamic is more acute, such as that where a witness requires to be cross examined or there are issues of credibility, but we are in the early days of such things and who knows what lessons will be learnt and improvements made to allow the experience to be a truer one.

At the moment we are in a “plug and play” phase. Lock-down has meant the need to adapt to a new normal quite quickly. It has not allowed the development of bespoke technologies to meet the demands of the given situation. Rather, one has seen the adoption of existing technologies to fill the breach. My hearing this morning used StarLeaf which like Zoom or Teams, allows video and audio and would have allowed the sharing of screens and documents if that had been needed. One can imagine more bespoke systems which would have integrated hearing bundles and private instant messaging between parties. But as has been said “it is hard to change the wheel on a moving car” and we are having to use what is to hand.

There has been much talk of the changes which this whole period will bring to working life. There has been a realisation that working from home can work and does have its advantages. It will unlikely bring in a wholesale change to working practices and it would be wrong to overstate the impact. There remain obstacles, not least the practicalities of working from home for many and there remains a need for real human interaction to avoid adverse impacts on mental health, but we will likely see a new balance and more flexibility.

The same will I hope be true for the Courts and the adoption of remote hearings for the right case and the right hearing. There is ever greater demand from clients to see more for less and when such hearings become more the norm, they should inevitably see some reduction in costs. Such hearings will likely also mean more direct and ready access to judges and allow greater hands on case management. It is easier to organise what is in effect a video conference call than a physical court hearing and the latter by definition requires no room or other infrastructure. All of which allows greater access to justice likely at lesser cost.

Let us hope that whilst accelerated by adversity the adoption of remote courts will see one good lesson learnt from this period of disruption.

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