Written by Anneliese Day QC and Niamh Cleary, with contributions from Richard Lissack QC, Patricia Robertson QC and Leonora Sagan

Introduction

English courts and tribunals have long had the power to hold hearings remotely, including by video conference. CPR 3.1(2)(d) provides that the court may “hold a hearing and receive evidence by telephone or by using any other method of direct oral communication”.  Likewise, tribunals have always had a wide discretion in this regard. The use of telephone hearings for uncontentious directions hearings and the receipt of evidence by video link or skype where witnesses were located abroad, was relatively commonplace. However, prior to the advent of COVID-19, the prospect of substantive hearings and trials being conducted on a fully remote basis was almost unimaginable.

The Courts Service (HMCTS), judges, legal practitioners and clients are now having to rapidly adapt to what is, for the foreseeable future, the new “normal”. The speed at which they have done so is commendable, but it will inevitably be a learning process. The more successfully the various stakeholders can adapt, the more justice will be served and the more likely that the legal landscape will be permanently altered after the current restrictions come to an end.

Although there is obvious potential for unfairness, which needs to be guarded against, remote hearings have the potential to offer real benefits to the justice system on a longer-term basis.  They can reduce the cost of attending court in straightforward lower value cases, which may allow well-founded claims to be brought where they would not otherwise be. This may increase access to justice for individuals and smaller to medium businesses alike, as opposed to litigation only being affordable by large corporations and the super-wealthy. They also offer an important means of facilitating the attendance at court by parties whose physical disabilities make it difficult for them to attend in person[1], and may bring environmental benefits of less paper and less air travel being generated.

In this article we consider some of the challenges (both practical and principled) that remote hearings pose for parties and seek to provide practical tips on how some of those difficulties can be mitigated.

To read the full briefing, please click here. 

 

[1]  The obligation not to discriminate under section 29 of the Equality Act 2010 does not apply to judicial decisions, which are excluded from the scope of the Equality Act (see paragraph 3 of Schedule 3 to the Act). But as a matter of general law the exercise of a judicial discretion (including in relation to case management issues), the court must consider all relevant considerations, including any disabilities of the parties. See J v K [2019] EWCA Civ 5 [33]-[34].