The Civil Justice Council was requested by the Master of the Rolls (Sir Terence Etherton) to conduct a rapid review between 1 and 15 May 2020 on the impact of COVID-19 on the civil justice system. The specified aims of the review were to examine (1) the impact of arrangements (in particular the widespread adoption of remote hearings) on civil court users, (2) to make practical recommendations for the short to medium term, and (3) to inform thinking about a longer term review.
The review acknowledged that due to the short time scale there had been a relatively limited response from lay court users, which only emphasised the importance of collecting better data to understand their experience. Judges and court staff were also not asked to participate due to pressures on their time.
The review noted that successive announcements by the senior judiciary at the start of ‘lockdown’ emphasised their commitment to continuing the work of the courts wherever possible. The rapid expansion of the use of remote hearings had been central to facilitating the continued operation of the justice system with few civil hearings being conducted face-to-face. Judges had been required to consider the suitability of remote hearings on a case-by-case basis and asked to proceed remotely “where a fair resolution could be achieved.”
The review identified that this had led to a proliferation of practice across the civil justice system with the move to remote hearings being swifter and easier in the senior and commercial courts, where resources are greater and levels of legal representation are higher, and more problematic in the County Court. Multiple respondents to the survey had also noted the variation in clarity and content of the various court guidance documents and working practices, leading to an inconsistency of approach. Overall, restrictive and inconsistent interpretation of listings guidance had therefore further reduced the number of hearings taking place at the county and district court level.
It was noted at the outset that “A combination of factors brought about by COVID-19 have fundamentally altered the work conducted across the civil justice system.” These factors include policy decisions as to which types of cases should be prioritised or stayed; pressures on County Court time due to the continued need for family law hearings; and a reduced number of litigants in person engaging with hearings.
Respondents registered significant concerns that the combination of the pandemic-related economic changes and the backlog created by the stay in possession hearings would create very serious pressure on the civil justice system in the short to medium term. Professional court users also raised repeatedly as a concern the high rate of adjournments, with a particular impact on members of the junior bar. Further, the use of remote hearings had a disproportionate impact on lawyers with caring responsibilities.
In respect of remote hearings that had taken place within the time period of the review, 46.5% had taken place in London and only 58.8% in county courts outside London. Nearly 40% were personal injury hearings. The vast majority of all hearings were less than 3 hours, and only 31% were trials as opposed to interlocutory hearings. Less than a third were by video rather than by phone. Nearly half the hearings had technical difficulties of some kind, especially in video hearings, both with joining calls and conducting the actual hearings. In many cases, the technical issues lay with the technology available to the judiciary. There were also inconsistencies in the ability of courts, particularly county courts, to manage remote hearings and electronic files. Unsurprisingly, in 44% of hearings there were issues with parties interrupting each other, particularly in telephone rather than video hearings, which was not helped by time lags caused by technology.
The review concluded that there was “tentative support for reserving remote hearings for matters where the outcome was likely to be less contested, where the hearing was interlocutory and where both parties were legally represented.”
Respondents felt that audio hearings were more efficient, due to reduced travel and waiting time, and offered tangible benefits for work/life balance and the environment. However, the majority of respondents felt remote hearings were less effective for facilitating participation, and were more tiring due to the impact that video hearings have on the ability to communicate with clients and other legal teams. Respondents felt that dialogue was less fluent when hearings proceeded by video, and that it was harder to gauge reactions and respond appropriately. The prevalence of technical issues was commonly cited as a reason for thinking that video hearings were worse than hearings in person: many respondents stated that the information technology provided for video hearings was counter-intuitive and prone to failure. Frustration with connection problems, delays and time lags was also commonly expressed. Further, they were not necessarily cheaper than hearings in person. The main factor increasing preparation time was the extra work involved in preparing electronic bundles and documents.
There were a number of concerns noted about the impact on lay clients and court users: in particular the lack of communication and reduced administrative support available from and with court staff had a disproportionate effect on lay clients and litigants in person; the challenge of accessing technology and using e-bundles; and that the practices adopted by lawyers to communicate with their clients during hearings relied on lay parties having access to multiple devices and good standards of written comprehension, creating barriers to effective participation. The review noted that significant multi-tasking was required to communicate with clients during remote hearings and this had presented considerable challenges for both audio and video hearings. Communication with clients had to happen privately and simultaneously as the hearing took place. Respondents described difficulties concentrating on the hearing and making submissions, whilst also dealing with emails or texts.
Overall, the review concluded that “a combination of restricted access to legal advice due to COVID-19 and difficulties with navigating unfamiliar technology alongside unfamiliar legal processes compounded pre-existing practical and emotional barriers to effective participation.” The review highlighted that given the low participation of lay users in the review and the kind of hearings that had been heard during the review period, the problems experienced by lay users and litigants in persons were likely to be amplified if remote hearings were expanded to include matters more likely to involve litigants in person and vulnerable parties, such as housing.
Recommendations suggested by respondents
The review noted that there was a clear willingness and enthusiasm for commercial firms to expand the use of remote hearings in commercial litigation. In other practice areas, respondents to the review recommended maximising the use of remote hearings in preliminary matters, interlocutory hearings and trials without evidence, particularly where both sides were represented. The majority of costs disputes were also felt to be suitable for remote determination. Respondents also emphasised the important role of continuing to list trials in encouraging parties to settle.
A number of practical recommendations were made as to how to address identified technical issues with remote hearings. Those particularly relevant to professional users were:
- Conducting dry runs to test the technology in advance of the hearing;
- Providing sufficient notice of format so all participants can ensure suitable technology is in place;
- Allocating more time before the start of each hearing to deal with connectivity issues;
- Having direct contact details of parties and judge in advance of hearing;
- Having a backup line of communication;
- Ensuring the quality of e-bundles.
- Investing in remote access areas for clients with no access to technology and broadband;
- Ensuring parties have more than one screen to participate in hearing and view documents.
Many of us in the medical legal world will, by now, have been faced with the challenge of conducting remote hearings in the current COVID-19 context to a far greater extent than any had previously anticipated could be possible, given the civil court system’s pre-existing shortcomings and difficulties. Arguably, the courts have been dragged (un-)willingly into the 21st Century – in particular in the use of e-bundles. Aside from technology, the two greatest difficulties have been the variation in practice between courts as to what hearings are held remotely, and in how they are they heard.
What the CJC review makes clear is that there is a significant potential for remote hearings to be used to good effect to reduce time and expense for all parties involved. However, there is a need for significant investment of time and effort by both court users, and perhaps most of all by the court system, to acquire the necessary commonality of technology, expertise and familiarity with the different issues posed by accessing and conducting remote hearings. Further, remote hearings are certainly not appropriate for all types of hearings, and there is a real issue over access to justice and meaningful participation in cases for the unrepresented and even for lay clients who are represented.
The real question is whether in the brave new world after COVID-19 there is the political will, and perhaps more importantly the funds available, to implement the lessons learnt during the current pandemic in order to increase the availability and usability of remote hearings wherever they are suitable. The judiciary will have a key role in driving their wider implementation.
In the meantime we will have to continue to navigate the ever lengthening lists of guidance, and protocols and hope that over time there will be a sensible convergence around common best practices.