When the government imposed restrictions on movement and social interaction due to COVID-19 in March 2020, there was understandably a great deal of concern about the effect on ongoing and potential litigation. After all, there was no system in place and most litigators had little or no experience of conducting litigation from commencement to trial on a remote basis.
The challenges
Litigators had to adapt quickly to a new way of working remotely, mainly from home and often with limited facilities or support. Many with parental responsibilities were juggling cases with home schooling.
Where proceedings were ongoing and had dates fixed for upcoming hearings or trial there was uncertainty as to whether the hearing would still proceed and, if so, how the hearing would be conducted. In cases where there was no imminent hearing or trial, the parties wanted to know what impact there would be on the day to day running of their case and, in particular, the meeting of deadlines.
Firms that were operating paperless prior to the pandemic were at an advantage and suffered little disruption, whereas others had to innovate and adapt to enable them to continue to serve their clients.
Opportunities
The civil justice system adapted well to remote working and made arrangements for remote hearings to be conducted by telephone or video. The judiciary were clearly on board with the necessary change. The default position became that hearings would be conducted with some or all participants attending remotely. The court service expanded on the availability of technology, which was far more user friendly and better than expected. After the initial challenges, there was little disruption to the litigation process and the courts became fully functional and able to administer justice in most cases.
A year on, the advantages of remote working have become apparent and for those reasons remote hearings and electronic filing will continue and will likely be expanded going forward.
Remote hearings make the listing process more efficient. Hearing dates can be fixed on the availability of the participants and not limited by the availability of a physical court room. Judges from across the country can hear cases and do not need to sit in a particular court building. Judges have flexibility when hearing cases. In some instances, this allowed judges to continue to hear cases after normal court closing hours and made it easier for them to set a new date for part-heard hearings as the only issue was one of parties’ availability and not one of court room facility.
These changes brought about advantages and opportunities for practitioners too. Remote working allows more efficiency in the delivery of legal services. It saves costs and on time spent travelling to the courts or other venues to service clients. Practitioners can work on cases right up to the time when a hearing or meeting starts and carry on the very minute it ends. Junior members can join hearings and gain experience without taking too much time out of their diary, which they may not have done had they attended a hearing in person.
The experience of remote hearings has also been welcomed by clients, who can now join a hearing from their home or place of work without the need to travel to court. This also saves them time and costs. Clients would only normally only attend final hearings or where they may need to give evidence, whereas they can now fully participate during all stages of the litigation process. In this respect, remote hearings have further opened up the justice system to the public.
However, one complexity of accessing the courtroom remotely is the difficulty of knowing who else may be in the room.
Mediation
Mediation has an important role in litigation. Unsurprisingly, mediation continued to take place and settled disputes remotely during the COVID-19 restrictions.
Like the courts, mediators have embraced technology. They offered their services via remote video link services, such as Zoom and Skype. Mediation better lends itself to being conducted remotely than a hearing, as it is often less formal and consists of smaller sessions with less time constraints. Remote mediation can also offer time and cost saving as there is no need to travel and have a venue. These benefits are likely to encourage more parties to engage in remote mediation, with in-person mediation being the preferred option for high value or more complex cases. Going forward, remote mediation may become the default position, with parties choosing to have an in-person mediation only in exceptional cases.
The future
The benefits of working remotely have been embraced by most and are likely here to stay. The “new normal” is likely to see a hybrid model of office and home working.
Court hearings will take place either remotely or in-person depending on the circumstances of each case, the availability of the parties and court facility. As technology improves, we are likely to see more hearings conducted remotely, which may become the default position with only complex cases returning to the physical courtroom.
The efficiency and cost saving of remote working will not only benefit court users but also the court service, who will no longer require so many court buildings.
It is hoped the issue of whether a case is suitable for a remote hearing will be something the court will consider at an early stage when dealing with listing of hearings or a trial and will become a common feature during case management conferences and included as part of standard directions.
