In May 2020 the CJC commissioned an independent review to gather feedback on the impact of COVID-19 measures on the civil justice system. Prior to the review the Master of the Rolls stated, “It is essential that we understand quickly how court users are being affected by the widespread changes adopted by the civil justice system in response to COVID-19”. The report was published on 5 June and here we take a look at the key issues raised and recommendations for the future.
Whilst remote hearings may be here to stay in some form after the current restrictions are lifted, it is clear further investment in digital infrastructure will be required to safeguard the administration of justice, particularly lay participants' interests. It is to be hoped that consideration is given to which types of cases are best suited to remote hearings in order to ensure evidence can continue to be robustly tested.
Remote hearings - lawyers
On the whole lawyers were satisfied with their experience of remote hearings, with 71.5% rating it as positive or very positive. The review described the findings as suggesting "tentative support for reserving remote hearings for matters where the outcome is likely to be less contested". However overall, the majority of respondents “felt that remote hearings were worse than hearings in person”; they were less effective in terms of facilitating participation, more tiring to participate in, and findings also suggest that remote hearings may not be cheaper.
With specific reference to personal injury claims, FOIL members’ feedback was “positive particularly with regard to CMCs, CCMCs, Stage 3 Hearings, interim applications, detailed assessments and appeals.” However, there are concerns over the handling of trials with witness evidence and cross examination by video as “the advocate’s and the judge’s ability to take into account body language, reaction and demeanour are significantly impaired.”
Nearly half of the hearings referred to in the survey experienced technical difficulties. The most common problems were with call connection and audio. Poor connection of phone and internet lines had caused parties to drop out of hearings and lose video or sound.
Guidance provided by the Judiciary and HMCTS was found to be useful but lacking consistency between different courts. Greater “granularity and consistency” is requested in further guidance produced.
Remote hearings – lay users
As rapid responses were required to the consultation it was acknowledged that the methods of data collection used are ill-suited to capturing the experience of lay users and litigants in person. Only 11 complete responses were received. Given this low number the findings of the review were predominantly based on lay users and litigant in person experiences described by lawyers.
Not all lay users have access to the internet and/or email, and many vulnerable parties do not have access to electronic devices and therefore cannot access digital platforms for hearings.
Lawyers report trouble communicating with their clients throughout hearings. The findings show that this caused distress for both clients and lawyers in some cases. There have also been strong arguments that vulnerable users have been unable to participate fully in remote hearings and that access to justice needs to be monitored.
Many of the lawyers advise their hearings went well but the situation would be very difficult if a litigant in person was involved.
Suggestions made to help the continued operation of the civil justice system (specifically for personal injury claims) included maximising the use of remote hearings in interlocutory and procedural hearings where both parties are represented and some trials involving submissions rather than live evidence, and costs disputes.
In order to assist with this, systems need to be improved to support filing e-bundles, equipment provided to judges needs improving and better document sharing is required.
However, respondents cautioned against the use of remote hearings in longer cases, and hearings involving litigants in person. It was noted that some claimants, particularly litigants in person, do want their ‘day in court’. In looking to implement more remote hearings, care needs to be taken to ensure trust in the justice system is not undermined.
There was general agreement that there is a need to continue to list trials through the COVID-19 pandemic “to encourage settlement and reduce pressure on the civil justice system.”
FOIL advised hybrid trials “should be considered” with the judge and witnesses in court and advocates by video link. This would allow the judge to “gain a full impression” of the witness(es). However, this suggestion was disappointingly not considered in the review response.
The report outlines a number of urgent priorities recommended by respondents. The most pressing is the need to understand the experience of non-professional court users, particularly those considered vulnerable and litigants in person. This review was said be “dominated” by the experience of professional court users. “Immediate attention and resource” needs to be dedicated to understanding the non-professional court user’s experience.
In order to make this possible, the quality of management information collected by HMCTS is urgently in need of review. HMCTS should look into how to collect data on the number of litigants in person in proceedings to identify a sample frame for research. In the meantime, hearing notices should be adapted so parties can be re-contacted for research, and data on hearing outcomes should be collected.
The review also recommends that the impact of remote hearings on the junior bar, women and individuals with caring responsibilities should be monitored. Some professional users may not have the appropriate work-spaces to conduct hearings from their own homes.
In relation to cost, further investigation is required in the context of the ongoing programme of HMCTS court modernisation. The current assumption is that remote hearings will reduce costs for court users, however if this is not borne out, “the widespread expansion of remote hearings may not deliver the access to justice benefits predicted.”
As noted by FOIL, changes at the moment are taking place in "an atmosphere of emergency". When looking to retain some of the current changes including the use of more remote hearings it is important that “new procedures are not adopted too readily, without proper evaluation, equipment or training.”