Civil procedure rules: extension of video or audio hearings
By Ed Patton
Ed Patton considers how the convenience of remote hearings must be balanced with open justice
In early 2020, asking someone if they could ‘set up a Teams meeting’ might have been met with blank stares and if a colleague has said they spent the weekend ‘on Zoom’, questions might have raised about their professional conduct. So quick was the move to conducting business on these and similar platforms that it is easy to forget how quickly this change has been adopted.
While individual legal practitioners will have their preferences regarding the use of these formats, it is clear expectations about their use have changed. In the court system, online hearings were prompted by necessity and now the courts find themselves with the unenviable task of balancing the needs of practitioners and parties, while facilitating justice without adversely impacting the quality and scope of proceedings.
On 24 March 2020 (two days before the first lockdown commenced), the Master of the Rolls and Lord Chancellor signed Practice Direction 51Y. Made under the powers to modify or disapply rules for specified periods found in CPR 51.2, PD51Y provided for the use of audio and video hearings until the Coronavirus Act 2020 ceased to have effect.
The Coronavirus Act expired on 25 March 2022, but the 143rd update to the CPR (signed on 22 March 2022) extended the provisions under PD51Y until 25 March 2023.
By the time these amendments expire, these important and far-reaching changes to the conduct of hearings in England and Wales will have been in place for just over three years. By comparison, the current disclosure pilot scheme is scheduled to be in force for four years, with the pilot itself being a product of a two-year review. While PD51Y is nowhere near as extensive as the disclosure pilot, the longevity of these changes makes them akin to a pilot scheme in their own right. It is therefore important to consider the past and future impact of these unofficial changes, especially given that the vast majority of the consideration as to its repercussions happened after the changes were brought into effect.
The provisions and open justice
“…where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.”
For much of the initial period after the introduction of PD51Y, even if it had been practical to broadcast hearings in a court building, it would not have been possible for the public to attend and such hearings were effectively conducted in private.
However, when practical, it was necessary to record the hearing and to make that recording available to anyone who requested it at a court building. If it was possible for a media representative to remotely access those proceedings while they were taking place, this was not the case for the wider public. While conducting hearings in private has relatively little direct impact on practitioners, this shift does give rise to potentially damaging effects (as well as significant opportunities) in relation to the delivery of open justice.
Impact for practitioners
A few weeks prior to the extension of Practice Direction 51Y, the Law Society provided its view on the rapid switch to remote hearings as a consequence of the pandemic. In this review it was noted that these enforced changes had simply accelerated what was already envisaged by the HMCTS (Her Majesty's Courts and Tribunals Service) programme. Originally conceived in 2018, this programme planned greater use of digital technology in the criminal and civil courts, with video hearings a potential means of speeding this reform.
With the benefit of the experience of the last two years, the Law Society has identified a number of areas of concern with remote hearings including:
· The increased importance of technology placing a potential financial strain on firms which are then required to upgrade their equipment in order to carry out their work;
· The impact on the significant minority of UK adults who are not internet users;
· Cases involving live evidence or particularly contentious proceedings suffering as a direct consequence of not being held in person; and
· Some parties being particularly poorly served by remote hearings. Factors such as disability, not having English as a first language and socio-economic background were all relevant when considering the suitability of remote hearings.
However, the Law Society noted for simple procedural hearings, such as directions hearings, remote hearings worked well. The same could also be true of more complex hearings when they involved sophisticated parties or legal entities.
HMCTS has also carried out an evaluation of remote hearings. Relying on survey data, this review identified additional issues, such as the fact few non-professional attendees were physically with their legal representative when they attended the hearing.
This made it difficult for practitioners to take instruction and for clients to ask questions. Further, the surveys confirmed many practitioners wished to continue working from home (and therefore attend remotely) once pandemic restrictions were lifted entirely. Such attitudes will be difficult to reverse.
It would be misleading to view the increased use of virtual hearings entirely as a consequence of the pandemic. While most practitioners and parties had their first experience of remote hearings during the pandemic, their increased use was already envisaged for some time. The pandemic rapidly accelerated this change and with most practitioners having a positive view of remote hearings, reversing this is unlikely to be popular. This begs the question as to what the long-term approach could be and how that approach will be governed.
While the pandemic has been declared ostensibly ‘over’, the extension to PD51Y is a hedge against unforeseen circumstances and a potential indication of how the courts might approach litigation in the future.
The experience of the past two years will be instructive for many and there will be variation in both preference and application, depending on the nature of a hearing and its subject matter. There will likely be a difference between what the court’s requirements are and what is most suitable in the circumstances. For example, while the hearing may be remote, in order to ease communication issues between solicitor and counsel and solicitor and client, it will be desirable for the parties to limit the number of locations they are joining the hearing from. Whether this is deemed sufficiently important to be governed by a specific rule or it will be left to the individual parties to decide is a good example of how the existing approach may be further codified.
A ‘virtual’ approach offers many opportunities, as well as risks. It is vital that the benefits of remote hearings do not diminish the delivery of open justice and everything that comes with it.
The way the concerns of parties are accommodated in any new guidelines on remote hearings is likely to differ by subject matter. The Law Society has already identified that some proceedings are inherently unsuitable for remote conduct and it is not always the case that this is apparent at the time the hearing is listed.
A process that accommodates such concerns is therefore crucial. More generally, it will also be incumbent on practitioners to identify when particular hearings or particular individuals are not suitable for remote hearings and take necessary steps to avoid these, even if it is on the surface less convenient to hold such a hearing in person.
Ed Patton is an associate at Russell-Cooke russell-cooke.co.uk