The English Courts have come a long way in utilising technology, from permitting witness evidence to be given via video conferencing to the advent of CE-File. Having now embraced remote hearings in light of the COVID-19 pandemic, it remains unclear whether this will have a lasting impact on how litigation is conducted in future.

The Courts' response to COVID-19

Prior to the UK-wide lockdown, filings at certain divisions of the High Court were entirely electronic through CE-File and telephone hearings were used in some cases. However, most of the work in the Courts (especially in the County Courts) was conducted in person and by post or email.

Since the COVID-19 outbreak, Practice Directions have been introduced to provide guidance on conducting video and audio hearings, as well as clarifying the circumstances in which hearings would be adjourned. CPR 3.8 has also been modified, allowing parties to agree an extension to deadlines of up to 56 days without the need to make an application to the Court.

The Courts have been quick to introduce the concept of remote hearings, with listed cases now being heard remotely in the Court of Appeal and the Technology and Construction Court, amongst others. The approach seems to be that it is (for now) business as usual, emphasised by the High Court refusing an application to adjourn a trial listed for 5 weeks, instead ordering that the parties explore ways of conducting the case, worth £250 million, remotely.

Will there be a sustained interest in remote hearings after COVID-19?

Looking ahead beyond the COVID-19 crisis, it is unlikely that larger, longer, high-value hearings will be conducted remotely. In such cases, parties and judges are likely to remain keen to be in the same room, and any cost benefits of remote hearings would be less material.

However, there may be scope for smaller, more procedural hearings (such as winding-up hearings or CMCs) to continue remotely after the lockdown restrictions are lifted. This would save costs and time, as parties wouldn't be travelling to and from Court. With documents being filed electronically, without the need for numerous hard copy bundles, the legal profession could also align with efforts to become more environmentally friendly.

Judges in certain courts have been conducting daily remote hearings and have witnessed first-hand in many cases how seamless the experience can be (provided that all parties have a speedy internet connection!). Therefore it is entirely possible that the prompt for modernisation may originate in the judiciary itself.

There remain several points to consider before face-to-face hearings are able to be fully replaced by screens:

  • Consideration of timings would be needed in global cases where clients or witnesses are not based in the same time zone
  • Careful thought is required as to how remote hearings would impact litigants in person, especially those without access to specialist video conferencing software
  • Would remote hearings be feasible in document-heavy cases? It is hoped that the ongoing Disclosure Pilot Scheme (which I have previously written about) will reduce the number of documents generally disclosed in many cases
  • An accelerated rollout of CE-File to all County Courts in England and Wales may be required, in order to facilitate the move away from filing documents by post or in person

It is unclear whether remote hearings will become the 'new norm' or merely a distant memory of the COVID-19 crisis. Regardless of the future, recent actions have highlighted the judiciary's ability to quickly adapt to new technology and practices, which is hoped will continue long after COVID-19.