COVID-19: The effect on the courts

Posted Tuesday 24th March 2020

On 19 March the Lord Chief Justice (LCJ) announced that, during the Covid-19 pandemic, “It is of vital importance that the administration of justice does not grind to a halt”. Whilst it’s hard to disagree with LCJ’s sentiment, such sentiment presents an obvious question: How can the courts keep functioning given the apparent contradiction of the Government’s advice that the public avoid all non-essential contact?

The current advice is that HM Courts & Tribunals Service (HMCTS) continue to operate as normal. However, they operate with the following important caveat: that a physical hearing may only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure the safety of all participants. Advice published by the Bar Council on 24 March further explains that parties should not attend a hearing unless it is genuinely urgent and it cannot be done remotely.

As a direct consequence of the pandemic, the Protocol Regarding Remote Hearings in the Business and Property Courts was updated on 19 March and provides the following guidance: –

Whilst court buildings remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19;
Judges will propose to the parties one of the following three options:

1. Proceed with a physical hearing in court with appropriate safeguards (this option is likely to only be used in the most urgent cases);
2. Proceed with a remote hearing using Skype for Business, BT conference calling, court video link or other appropriate technology; or
3. Adjourn the hearing because a remote hearing is not possible and a physical hearing is unsafe.

Remote hearings remain public (although the protocol does not go into detail as to how a member of the public would ‘attend’);
Hearings can and will be recorded by the court (the protocol prohibits anyone other than the court from recording the hearing).

The LCJ previously announced that all Crown Court trials for a duration of three days or less were to go ahead as planned (which perplexed some eagle-eyed lawyers, who sensibly asked – “why?! Does the virus only spread after three days of exposure?!”). Needless to say, the advice has been updated such that as of 23 March 2020, no new trials are to start in the Crown Court and those already underway may be adjourned to ensure that adequate safety measures are in place.

The Court of Protection (CoP) is leading the way. On 18 March the first ever remote trial by Skype was held. The trial was no small undertaking given the number of parties involved; one Judge, two legal teams, eleven witnesses, three experts and two journalists. The Judge directed the parties to use Skype for Business (which allows all participants to see as well as hear each other). Following the first day of trial, John McKendrick QC reported that the trial “was very effective…and allowed for full and fair participation by all parties”. An effusive endorsement by legal standards.

It appears therefore, that litigants must be prepared for the possibility of remote hearings and the courts are ready to embrace technology to facilitate the adjustment. In an industry that is readily accused (with some justification) of being stuffy and antiquated, this will come as a welcome development to most (albeit in difficult and worrying circumstances). If a hearing or trial is forthcoming, it is imperative that litigants contact HMCTS well in advance to establish whether a particular hearing is to go ahead and if so, how.

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.