As authorities take unprecedented measures to help control the spread of the 2019 novel coronavirus disease (COVID-19), working from home using online technologies has become an abrupt but necessary fact of life for many. Adaption to disruption is becoming the new normal and the UK courts are no exception.
During this unparalleled situation, the UK government has been updating online advice and guidance for all court and tribunal users in light of the outbreak. Last week, the business of the courts and tribunals was said to be continuing. In recent days, however, the courts and tribunals have adjusted usual practices and taken steps to minimise any risk to the judiciary, staff, professional and public users, including justice partners.
Significantly, the use of telephone, video and other technology has gone from something “judges can consider” to being put in place to continue as many hearings as possible. Meanwhile, the Lord Chief Justice has announced a temporary pause on new trials in the Crown Court while measures are put in place to facilitate safe physical hearings that comply with social distancing advice.
Greater reliance on virtual technology in place of face-to-face hearings has traditionally been resisted for complex cases in the commercial courts. That is undoubtedly set to change, at least in the short term.
Online dispute resolution
The idea of utilising online technologies to transform dispute resolution is of course nothing new. An important step into the realm of online hearings was taken following the recommendations of Lord Briggs (or Briggs LJ as he was then) in 2016. With a focus on maximising access to justice, improving user experiences, and delivering much needed cost savings, Lord Briggs proposed an “online solutions court” for money claims of £25,000 or less.
Since then, developments and reforms have seen the rise of online solutions for resolving lower value civil disputes and consumer claims. For instance, the county court has been testing two online pilot schemes; one in respect of money claims of up to £10,000 by unrepresented claimants; the other, an invitation-only scheme testing a procedure to allow represented claimants to initiate money claims online. Likewise, initiatives such as the RTA portal have been developed with the intention of reducing precious court time spent on matters such as low value personal injury claims for minor traffic accidents.
Meanwhile, avoiding the courts altogether remains an option by resorting to measures such as virtual mediation conducted over the phone, by email or video conference.
Yet, the prevailing thought is that complex commercial claims remain best suited, more often than not, for hearings to be conducted with all parties attending face-to-face. Practitioners and courts alike have not embraced new technologies as a means of taking complex civil claims online and out of the court room. There are good reasons for this, not least the importance of the human element to resolving difficult disputes, particularly when it comes to cross-examination. Much nuance is conveyed through body language and non-verbal cues which may, at least it is feared, be lost when transmitted electronically.
Nonetheless, current circumstances are forcing a dramatic re-think. Across the world, including in the USA, China and Europe, courts are either closing, postponing trials or sharply scaling back proceedings. Under these conditions, and as remote means of communicating become the day-to-day norm, prevailing thinking towards online hearings may undergo a radical transformation. Perhaps greater use of online technology in everyday life will help make deciphering emotional content delivered electronically more familiar and less challenging for all involved.
COVID-19 is causing drastic changes to ordinary life as individuals, organisations, and institutions adapt and rethink old habits to protect themselves, their loved ones and the wider public. While, as always, judges and practitioners will need to make assessments on a case-by-case basis, resorting to virtual trials for commercial cases will be unavoidable in some instances. This may have implications well beyond the immediate future.