COVID-19 – virtual courts – our first hand experience with the new normal
The court system has been forced to react quickly to the ever-changing circumstances by introducing new protocols on remote hearings. We reflect on the Court’s approach to hearings in the midst of the COVID-19 pandemic, and our recent experience of a Skype hearing to adjourn an application listed to be heard in April.
How are the courts hearing and progressing matters despite COVID-19?
Guidance was provided on 26 March 2020 for the County Court, High Court (including the Business and Property Court) and Court of Appeal. The protocol expands on how remote hearings can be held in public and how the requirement to record a hearing can be achieved electronically, by reference to the new Practice Direction 51Y, “Video or Audio Hearings During Coronavirus Pandemic”. It also provides a non-exhaustive list of the available methods for remote hearings, including conference calls, court video link, Skype and Zoom.
Parties are encouraged to be proactive and the courts will propose one of the following options for upcoming hearings:
- To proceed remotely, via whichever method the parties and the court deem to be appropriate.
- To hear the case in court with the appropriate precautions in place to prevent transmission of the virus; we understand this option will only be reserved for exceptional cases.
- To adjourn the case. The protocol specifies a case: “will need to be adjourned because a remote hearing is not possible and the length of the hearing combined with the number of the parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time”.
Are the courts willing to adjourn cases?
In our experience, the courts are reluctant to adjourn hearings. We are instructed by seven local authorities in a claim against Barclays, relating to the bank’s manipulation of LIBOR. The bank has applied for summary judgment/strike out of the claim and this application was scheduled to be jointly heard with another similar claim by a separate local authority.
The hearing was listed to take place on 6 – 8 April. The bank applied to adjourn the hearing, as it believed a remote hearing was undesirable given the complexity of the issues, number of parties and length of the hearing. The respondent local authorities confirmed they would not oppose this application.
On 31 March 2020, the parties’ respective solicitors and counsel attended a Skype hearing. The hearing was set up with remarkable ease. In the morning, the parties heard from the Senior Listing Officer of the Commercial Court that Mr Justice Butcher had requested a directions hearing. Solicitors for the applicant, Clifford Chance, collated the email addresses of the attendees from all parties and provided them to the Court. All parties were then contacted by the Judge’s clerk with details of a Skype meeting.
Despite minor technical difficulties at the beginning of the Skype call, the hearing proceeded smoothly. Mr Justice Butcher expressed concerns that, if cases were to be adjourned, the courts would be overwhelmed when they were able to resume sitting in person. He explained that other recent hearings had successfully taken place remotely, including a matter with over 30 claimants and a case which required witness evidence to be streamed from both Belgium and Kazakhstan.
Butcher J invited the respondents to share their views. Adrian Beltrami QC for the applicants explained the reasons for the application, as set out above. Appearing for one set of claimants, Lucy Pert of Hausfeld explained that while the respondents were reluctant to incur any delay to the case, as local authorities, they were under pressure to deliver urgent and critical services to the most vulnerable in our society and the adjournment would permit them to concentrate on providing those services at a very challenging time. These novel circumstances and the fact that all parties were in agreement appeared to encourage the Judge to order the adjournment, where the Court would otherwise be reluctant to do so.
It is clear that the courts will not permit cases to be adjourned unless it is absolutely necessary. They are embracing technology, even where a large number of parties is involved. From our own experience in this particular case, we have seen that the Courts are set up to deal with cases remotely and hearings can proceed electronically without disruption.