Newly-appointed Chancellor of the High Court of England and Wales, Sir Julian Flaux, has given his preliminary thoughts on the road ahead in terms of remote hearings, including the types of hearings that are likely to suit a remote hearing and those that will not. He also flags the need to guard against ‘the unintended consequences of informality’ as the court starts to think about the long-term use of remote hearings.
Speaking to the Chancery Bar Association on 10 March, Sir Julian highlighted the Courts’ rapid adaption to the changes required by lockdown and commented: “It is difficult to understate the seismic change that occurred, about a year ago, when almost overnight we moved from in person hearings to remote hearings and from predominantly paper bundles to electronic files. It is a massive tribute to the resilience and dedication of our court system – its judges, lawyers and support staff– that this was achieved.”
Now that the end of lockdown is in sight, Sir Julian said that it was important to retain the efficiencies but jettison the bad.
He said: “I know that even if a remote hearing is a more efficient way of justly and fairly resolving a dispute, it has its price. The infrastructure – screens, bandwidth, cameras – needs to be in place, and even if it is, conducting remote hearings is more tiring for all concerned. We have, in the past, done it, and done it well, but at some personal cost. The extra mile to which all in the legal system have gone is not something I take for granted, and it is not a price that can continue to be exacted.”
He added: “After the experience of the last 12 months, we have a clearer view about the sort of cases that will and will not suit a remote hearing. Committal hearings, those elements of a trial involving an assessment of a witness’s credibility and (on occasion) interim applications involving a litigant in person are all examples of matters that are often best conducted live, though even then there are exceptions.”
However, Sir Julian said that it has become apparent that there are hearings that suit remote hearings well, where a “speedier less expensive format” seems more proportionate. “Generally speaking, these have been the shorter preparatory and interim hearing that are often a collaborative exercise between parties, like direction hearings.”
As we approach calmer waters, Sir Julian said that the time has come to take stock, commenting: “We all want to retain what we see as improvements to the system, and the advantages offered by remote and hybrid hearings. And an open and adaptable approach to remote and hybrid hearings would only enhance the English court’s existing reputation as one of the leading centres for international business dispute resolution.
“The experiences and opinions of this audience, and of all B&PC (Business & Property Courts) practitioners and regular court users must be actively sought and taken into account as part of this process.”
However, he warned that the Court must not lose sight of the benefits of many of the formalities attached to the court-based system that has existed for so many years and said: “We have all experienced the informality that can creep in when we are conducting cases from our kitchen tables or studies. We have had to become tolerant of those interruptions: bad WiFi connections, rings on the doorbell, noises from others in our family or barking dogs. Counsel taking instructions via WhatsApp and parties speaking more freely among themselves or litigants in person, perhaps feeling disinhibited and behaving less appropriately, or even on a more mundane level having to remind those who are not speaking to put themselves on mute to avoid feedback, can be distracting for the judge and participants.
“This has been a small price to pay as we worked to keep the justice system in the B&PCs fully operational and we have been able to work with the assistance of practitioners such as you with your accrued sense of what is proper in a courtroom. However, as we start to think about the longer-term use of remote hearings, we need to guard against unintended consequences of informality.”
He added: “To talk about the dignity of the court probably sounds self-regarding and maybe even a little pompous. But an element of formality in a courtroom is important, and serves to demonstrate the seriousness of the decisions being taken. Particularly in cases involving individuals and the economically disadvantaged, the outcome of a hearing can, and frequently does, have life changing consequences. When the court is making a compulsory order, it is compelling someone to do something that they do not want to do, and the person who is subject to the order needs to understand the consequences of not complying with that order.”
Interestingly, Sir Julian said that going forward, in a fully represented hearing, whether remote or hybrid, there should be an understanding of the minimum level of IT provision for judges and the parties, commenting: “You need to know that judges have access to enough screens to allow them to have the video and audio link and multiple documents open at the same time and that judges will have access to sufficient bandwidth to be able to access the e-bundles we have been sent. And there should be a consistency of approach in referencing those bundles, with proper file names and consistent page numbering.”
He added: “I hope that the updated AV equipment that has been installed or will be installed in eleven courts in the Rolls Building will go some way towards providing this element of consistency for parties. The new equipment is compatible with the HMCTS’ ‘cloud video platform’ and will be capable of supporting hybrid hearings, making such hearings more accessible to those who have not employed or cannot afford to employ the services of private software providers such as Opus 2.”
In a nod to wellbeing, Sir Julian said that the pace and intensity at which we have been working at is unsustainable and raises questions over wellbeing, concluding: “All in all, we must look at our experience in the round. We must remain alert to good aspects of remote and hybrid hearings and constantly refine our approach to ensure it is nuanced, fair for all parties and workable across all levels of the judiciary.”