REUTERS | Thomas Peter

COVID-19 and the civil courts: must the show go on?

If there was a date on which the realities of how COVID-19 was about turn the life of the nation upside down, Friday 13 March 2020 has to be the best candidate. Earlier that week, Leicester City had played Aston Villa on the Monday (Villa lost 4-0), the following day the Cheltenham Festival had begun its four days of horse racing, and by the Friday, thousands of Scottish rugby supporters were heading for Cardiff to witness their country’s first win against the Wales for a decade (or so they hoped). That match was “on” even though the Italy v England game scheduled to be played in Rome had already been called off. Then at about 2.00 pm, the Welsh Rugby Union decided that the match would not be played, the announcement following hot on the heels of the decision of the Football League that there would be no more Premiership football until 4 April. And when Pipe Dream cantered home to win the last race of the day, the 5.30 pm Handicap Hurdles at Cheltenham, that was it. The country’s sport was going into lockdown.

Those heading for the slopes of the Alps were also in for a shock: skiers in Switzerland enjoyed their last run of the season that Friday, with French ski resorts closing at 5.00 pm the following day. Instead of the country’s holidaymakers implementing their plans to travel far and wide to enjoy their favourite sporting pastimes, it now became a scramble to get home. Terms such as “social distancing” and “furlough”, hitherto unheard of in the national vocabulary, now became ubiquitous in everyday speech. Within a week, the pubs and restaurants had closed and, from 23 March, the country was in official lockdown, with the government adopting the mantra “Stay home, protect the NHS, save lives”.

What has all this got to do with the law, it might be asked? The answer is that it was sport which provided the catalyst that focussed the mind of the nation, and finally the government, that COVID-19 was a killer and that unless drastic and immediate steps were taken, the virus would spread through the country like wildfire, taking many lives with it. And of the many problems facing the government as this crisis unfolded, there was one that was particularly pressing; what shall we do with the courts?

Justice in the English and Welsh legal systems is dispensed through the civil courts and criminal courts. Social distancing doesn’t lend itself to either. Justice, whether civil or criminal, requires courts. Courts need staff to secure and open them. Judges are needed to administer justice. Claimants, defendants, appellants, respondents and, in the criminal courts, those accused of crimes, are represented by lawyers. All need to travel to court, thereby utilising a transport system operated by still more people. As a combination, just to get a show in court on the road requires a significant deployment of personnel. Given the speed at which lockdown was imposed by the government, none of this could sit comfortably with the well known legal maxims that, “Justice should not only be done, but should manifestly and undoubtedly be seen to be done” (per Lord Hewart LJ in R v Sussex Justices ex parte McCarthy (1923)), and that “justice delayed is justice denied” (attributed to W.E. Gladstone).

In the face of the full frontal assault by COVID-19, how would the law respond?

This blog looks at how the civil courts have been coping with the coronavirus. The initial temptation was to grant adjournments. If it was not safe to travel to court or there was no certainty that the court would even be open, the easy option was for the judge to say, “Come back another day when all this is over”.

Teare J was not of that view. Faced with a request to take National Bank of Kazakhstan v The Bank of New York Mellon, a multi-million dollar case out of the Commercial Court list, he said on 19 March that:

“The Courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice, is very clear. The default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one, or all participants attending remotely… having regard to the need to keep the service of public resolution of disputes going, it is incumbent on the parties to arrange a remote hearing if at all possible by Wednesday of next week.”

Wednesday of next week duly arrived and, on 26 March, the first trial by Zoom Technology began, this being an internet platform hardly anyone had heard of before COVID-19, but which is now the means by which the country is conducting much of its business, not to say its drinks parties, contract bridge parties and even dinner parties.

The fact that cases heard in open court must be open to the public did not pose a problem, and Bank of New York Mellon became the first trial to be conducted following the passing of the Coronavirus Act 2020 on 25 March 2020. That permits the broadcasting of proceedings by video, provided the court so directs, which Teare J did. That way, it was possible for the public to observe the case from the the back of the notional court through the live streaming of the proceedings, and thereby to observe counsel, witnesses and the judge, albeit only as each spoke, rather than by gallery view.

The Court of Appeal was quick to follow Teare J’s lead by hearing Ho v Adelekun (No 2) as an “Appeal by Skype”, delivering its judgment by electronic hand down a fortnight later. Now, virtually all civil court work is being dealt with remotely. Instead of “Court 6 at 10.30 am”, the cause list at the Royal Courts of Justice has become replete with new listing terms such as “Hearing by Skype”, “Business by Skype”, “Zoom Hearing “, “Master Bloggs sitting off-site”, “Remote Conference Hearing”. For the time being at least, virtual justice has become the rule, not the exception, and it has been accompanied by, it is fair to say, a good deal of back slapping and self-congratulation about how well the civil justice system has adapted to keep the wheels of justice turning in this time of crisis (see for example paragraph 6 of Teare J’s judgment in Bank of New York Mellon).

Will remote trials catch on when the COVID-19 crisis has passed? Hopefully not, at least not in its entirety. Whilst some case management decisions lend themselves to remote hearings, that is nothing new. The courts have been conducting telephone hearings for years. Witnesses have been giving evidence through video conferencing facilities for as many, it having been recognised a long time ago that no purpose is served except to drive up the expense by putting a witness on an aeroplane to and from Australia for 48 hours, when their evidence can be given in real time by a video link. To the extent that COVID-19 has somehow dragged the court system into the age of technology is the stuff of nonsense.

There is also tacit recognition that Zoom or Skype justice is incompatible with the type of justice envisaged by Lord Hewart CJ almost a century ago. A closer examination of the RCJ daily cause list reveals that few High Court civil trials are actually taking place. On the contrary, the daily business for the most part consists of hearings for directions, case management conferences, applications and the handing down of electronic judgments, whilst in the Family courts, the senior judiciary has been heavily critical of the replacement of in-person hearings by those conducted remotely. In this context, the misgivings of Sir Andrew Macfarlane in P (A Child: Remote Hearing) merit quotation in full:

“The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely. The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment”.

That is how it should be. It would be a sad day if all justice was dispensed by platforms such as Skype or Zoom. Of course, in its eagerness to keep the shows on the road, there have been lighter moments. In the Supreme Court, the remote proceedings were interrupted by the mewing of leading counsel’s cat. In the same case, one of the justices enquired of a fellow judge, “Mary, I mean Lady Arden, are you switched on” (or words to that effect), when the learned justice was inaudible over the live stream connection.

More seriously, however, there can be no substitute for the day in court. Think of what cannot be done by Zoom or Skype. The demeanour of witnesses when giving evidence… looked shifty, or was that just a bad connection?… can’t tell (it was Mr Justice Peter Smith who said it was how a witness looked and behaved after he or she had given evidence that was instructive). The passing of a critical note by instructing solicitors to counsel during the crucial cross-examination; in the virtual court, an instruction by text or email is no substitute for a tug on counsel’s gown and the passing up of a billet doux, nor for the participation of the client who, in the virtual court, is one stage further removed from the lawyers he or she may be paying a fortune to instruct.

And what of the technology itself? As things stand at the moment, broadband bandwidth can be determined not only by geography (where you live: copper cable or fibre optic) but whether the children are playing computer games in the next room causing the system to crash, possibly at the moment that counsel is about to elicit that crucial admission from the opposition witness. That would never happen in a real court.

It follows from all this that when the COVID -19 crisis is over, the temptation should not be for the government to say, “the show went on, remote justice worked brilliantly, so we can close more courts and save costs”. That one has already been spotted by a shrewd wag in his contribution to the Law Society Gazette’s comment forum that:

“The Powers that be have been trying for 3 years to reduce the [court] estate and introduce more remote working… COVID-19 achieved it in 3 weeks”.

Instead, the legal profession must unite after COVID-19 has been banished from the kingdom to ensure that, with its demise, the civil court system as we have known it, is not its last casualty.

Leave a Reply

Your email address will not be published. Required fields are marked *

Share this post on: