Long way to go before remote hearings become the norm

Now that the initial clamour around remote tribunal hearings necessitated by the COVID-19 pandemic appears to have quietened and social distancing measures are being eased, our courts and its users are looking to what lessons learned during lockdown might mean for the court experience once ‘normal’ service is resumed, whenever that may be.

While some commentators may seek to argue that things will never be the same, and remote hearings are set to revolutionise legal proceedings, I’d hazard to predict that this is not necessarily what we can look forward to in our immediate or even medium term futures. Moreover, if this prediction turns out to be correct this should not automatically mean any missed opportunities.

While there unquestionably have been positive experiences of a move online, with High Court matters and International Arbitrations in particular blazing a trail in the use of multi-participant, remote hearings to help keep the business of courts and tribunals moving, albeit primarily for commercial disputes, elsewhere there have been different obstacles. For example, the realities of criminal jury trials and sensitive family court proceedings, particularly those involving domestic abuse and children have had to be wrangled with, and while the courts and judiciary have done their level best, the particular difficulties presented by the pandemic mean that a significant number of matters were adjourned. That is not to say that no criminal or family proceedings have been heard since March 2020, or that such matters would never be suitable for remote hearing, it is just that unlike commercial matters there are often more every-day barriers.

For remote hearings to be workable, including telephone hearings, there typically will need to be significant cooperation between parties and the court ahead of time. It is also crucial to understand how and when all parties can have their say without risk of an incomprehensible babble. This is no easy task even for seasoned lawyers and judges getting to grips with a new way of working, but it is likely even more intimidating for lay participants who will have found an in-person court appearance demanding enough.

Then there are the practical issues; does the attendee have a computer or phone, a Wi-Fi or 4G signal, and how much might data cost? Are they familiar enough with technology even to access a hearing, or to read documents onscreen at the same time as listening or speaking? Also, a quiet place to attend a hearing may be scarce, particularly if you are living in an overcrowded home, and/or you have sole responsibility for the care of children who you may not want to overhear particularly upsetting details. Finally, in both civil and criminal matters there is the lost in-person contact with a lawyer, who often is essential to explain complexities, sometimes amidst highly emotionally charged atmospheres. Outside of commercial disputes such matters can be of real concern.

Moreover, something that all matters have in common are concerns around witnesses. All remote hearings can give rise to issues of security and probity of evidence when it cannot easily be determined if a witness is alone and free of influence. Accordingly, some witnesses have been asked to give evidence in front of a mirror or the only door to the room they are in, and first have shown a view of an otherwise empty room. Similarly, concerns can arise in the use of interpreters. It is no longer possible to sit with a witness or party and it has been found far from straightforward to facilitate satisfactory remote interpretation, particularly the gold standard of instantaneous interpretation. This naturally risks impacting the quality of a party’s understanding and therefore any evidence.

It is certainly possible that remote hearings will become a more regular feature in commercial disputes, but even then, likely only for one-off applications/hearings as opposed to trials. However, it presently appears doubtful that we’ll see an upsurge anytime soon in the Crown, Magistrates’ and County Courts until we can be confident that the experience of litigants in person and criminal defendants is unlikely to be deleteriously impacted, and they can experience the same benefits that participants in High Court litigation and at arbitration appear to have found in lockdown.

Christian Toms, Partner Brown Rudnick