The English civil justice system has shown itself to be capable of rapid change as it adapts to the new reality caused by COVID-19. The clarion call from the English courts is that they are open for business, driven by the need to maintain the access to justice which is vital for the functioning of civil society.
Courts' rapid response timeline
17 March 2020
Lord Chief Justice Ian Burnett releases a statement announcing that "it is of vital importance that the administration of justice does not grind to a halt" in light of the COVID-19 threat, and that the courts' "immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters".
19 March 2020
Burnett LJ further announces that for judges in the civil and family courts, "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". Burnett also remarks that "[f]inal hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage".
22 March 2020
The civil courts update their guidance on remote hearings, which had been in place for some time but has now become the new norm after only a few weeks.
24 March 2020
Legal history is made when the Supreme Court conducts its first case entirely by video conferencing in Fowler v Commissioners for Her Majesty's Revenue and Customs.
Adapting to an unfolding situation
The court's rapid response to the COVID-19 crisis is exemplified by the following:
- Mr Justice Teare recently refused a request for a trial's adjournment, holding that "it is the duty of all parties to seek to cooperate to ensure that a remote hearing is possible".
- On the eve of a telephone return date hearing, a sealed consent order was secured from the court at 8:30pm after the judge and his clerk worked remotely to keep the wheels of justice turning.
- Remote hearings have also been conducted and there are likely to be countless further examples of this over the coming weeks.
Further, some court deadlines have been extended and certain hearings have been adjourned by agreement. However, the courts may be unwilling at present to let fixtures slip too far.
The courts have been embracing the use of technology for some time and there are countless examples of this happening. Live evidence via video link is common; one instance of its use is Triumph Controls UK Limited v Primus International Holding Company,(1) in which two witnesses based in California were cross-examined at length over a video link.
This will not be an easy task and it would be naive to think that there will not be teething problems during the move into a new era of conducting litigation in new ways, not least when the courts have to grapple with multi-party hearings or if the judge or a party's advocate falls sick. There will also inevitably be a backlog as the courts deal with priority work. What is clear is that cooperation and flexibility from the courts, lawyers and parties will be key to ensuring that the administration of justice continues.
Endnotes
