While the situation is changing rapidly with the spread of COVID-19, the UK government has said that it is essential that courts and tribunals continue to administer justice. In a statement on 17 March 2020, the Lord Chief Justice of England and Wales said:
"COVID-19 will clearly have an impact on the operation of all courts in every jurisdiction. It is not realistic to suppose that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt".
The government's intention to keep the courts operating is shown by its recent inclusion of "those essential to the running of the justice system" in a list of "key workers". Key workers are deemed to work in critical sectors and so may ask schools to continue to look after their children despite the closure of UK schools to other pupils.
Litigants should therefore assume that the courts will continue to operate for now. However, they should be aware of various restrictions that the courts have put in place to minimise risk to the judiciary, staff, professional and public users.
HM Courts and Tribunals Service (HMCTS) has announced that it will prioritise “urgent and vitally important issues" relating to the deprivation of liberty, public safety, and individuals’ rights and welfare. In the context of civil and family proceedings, urgent work will include (but will not be limited to) applications to suspend warrants of possession, injunctions and orders dealing with issues of care, abduction, emergency protection and debt, as well as breaches of injunctions and Court of Protection matters relating to vulnerable people.
Litigants should not assume that hearings relating to other matters will be adjourned. If there is a change to an individual hearing, the court will contact parties or their legal representatives directly by email or telephone.
Judges and their clerks will consider, in each case, whether the hearing should proceed or be adjourned. If the hearing goes ahead, the default position is that it should be conducted with one or more participants attending remotely. Available methods for remote hearings include BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. The courts have indicated that they will consider any other appropriate communication method available to the participants.
The use of technology to hold numerous remote hearings is new ground for the English courts, so "teething troubles" are expected. However, the courts have already indicated that they are willing to hold remote hearings of complex commercial claims. On 24 March 2020, the legal press reported that Mr Justice Teare has given directions for a $500 million multi-party dispute to be heard in a "virtual courtroom" by means of video conference. The proposed UK Coronavirus Bill will also amend some existing legislation to facilitate the use of remote hearings.
The Courts and Tribunals Judiciary has published a protocol to aid civil courts in conducting remote hearings during the COVID-19 outbreak. The protocol applies to hearings and applications in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts.
The protocol highlights two particular issues that judges and parties must consider before any remote hearing can take place. First, there is a procedural requirement for hearings in the English High Court or County Court to be recorded, unless the judge directs otherwise. The protocol suggests several methods by which this may be achieved in respect of remote hearings.
Second, the important principle of "open justice" requires that justice must be done in the open. Generally, hearings should be held in public unless the judge is satisfied that there are grounds for a specific hearing to be private. The guidance suggests that the requirements of open justice could be satisfied in the case of a remote hearing by:
A new Practice Direction dated 24 March 2020 clarifies the manner in which the court may exercise its discretion to conduct remote hearings in private. The Practice Direction also provides that, where practicable, remote hearings held in private must be recorded in a manner directed by the court. Any person may apply to the court to access the recording.