Looking ahead: has the pandemic changed court hearings for good?

As the end of lockdown comes into view, minds are naturally shifting to the question of what comes next. Businesses are considering whether remote working is “an aberration”, as Goldman Sachs CEO David Solomon has memorably labelled it, or whether to implement more flexible working arrangements. Similar discussions are taking place in the upper echelons of the legal profession about possible changes in the court system. The courts have adapted admirably to the COVID-19 related restrictions, and questions are now naturally being asked about which adaptations might last beyond lockdown.

In this briefing we review some of the views that have been expressed recently and suggest how the administration of justice may have been shaped for the long term by COVID-19.

• An interesting discussion of what the future may hold, which draws on case studies from a variety of jurisdictions, comes in the form of the second Memorandum on COVID-19 published by the Standing International Forum of Commercial Courts (SIFoCC). This offers a comprehensive assessment of which technological arrangements might remain into the future. On the most obvious development – the increased use of video technology – the Memorandum strikes a broadly positive note. The decreased cost of hearings is clearly a significant advantage, with virtual trials hugely reducing spend on travel time and administration.
  
  
• The linked issue of video witness evidence is more nuanced. While of course witnesses could, in certain circumstances, give evidence via video link before the pandemic, the experience of entirely virtual hearings raises the possibility of “dial-in witnesses” becoming much more widespread. In some cases the quality of the evidence has been enhanced because courts are able to hear from witnesses who would otherwise have been unavailable. At the same time many have expressed the view that it is more difficult to assess the credibility of a virtual witness. The Court of Appeal offered strong support for this view in the recent judgment of Bilta v TFS [2021] EWCA Civ 221, saying that hearings concerning allegations of dishonesty are “paradigm examples” of cases where in-person cross-examination would assist the Court.
  
  
• Questions over the quality of video-witness evidence link to the broader issue of whether the “dignity” of hearings has been diminished by our virtual experience. This is a theme that the Chancellor of the High Court, Sir Julian Flaux, explored in a recent speech at the Chancery Bar Association. Citing the informality that can creep in when conducting cases from home – including doorbell rings and barking dogs – Sir Julian warns that an element of formality in a courtroom is important to demonstrate the seriousness of the decisions being taken. One might go further and say that there is a practical, as well as symbolic value to the formality: SIFoCC’s second Memorandum notes that video testimony carries with it an increased risk of coaching or influencing of witnesses. The seriousness of a courtroom is a powerful deterrent to such “bending” of the rules (bending which has also included, in this writer’s experience, a witness expressing doubt that she could give evidence after having one too many drinks during the hearing).
  
  
• One of the most interesting developments of the new virtual world has come in Singapore. Freed from the requirement to hold hearings in a particular place it is now possible to explore whether the parties need to make submissions at precisely the same time. From March 2021, Singapore has implemented “asynchronous hearings” – that is, where the parties can contribute online and sequentially over a period rather than on a single occasion. While this will clearly not always be appropriate, the potential efficiencies of doing away with waiting and travel time, and saving the available time in physical courtrooms for the cases that need it, are clear.

This last development is perhaps the most telling. It is not that the innovation is especially remarkable, but rather that it demonstrates an increased willingness to experiment with court procedure in a way that is unlikely to have come about without the pandemic. The fact that the courts have been able to carry out their functions reasonably “normally” is a strong argument in favour of keeping those elements of an online approach which are cheaper or will save time.

Nonetheless, the courts in their pre-pandemic incarnation were the product of a long and considered evolution, and efficiency is only one metric by which they must be judged. Both Sir Julian and the SIFoCC make the point that greater use of technology does not always enhance access to justice; access to appropriate IT equipment or know-how to use court electronic services cannot be taken for granted, and for litigants in person the reassurance that their case is being dealt with face-to-face can be an important aspect of trusting the justice system. For all the advantages that litigating from home can offer, the importance of having your “day in court” nonetheless remains clear.

If you require further information about anything covered in this briefing, please contact Ben Longworth, Iain Stewart, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2021