Remote hearings of costs issues may remain a major feature of practice after the coronavirus crisis passes after a Civil Justice Council (CJC) report found support for the move.
A ‘rapid review’ into how the courts have responded to the pandemic analysed 1,077 responses to an online survey and 65 submissions, as well as court and other data, to produce a detailed 89-page report in the space of just five weeks.
It found that Covid-19 was likely to prompt a long-term move to remote hearings, at least in some areas. “Costs hearings were more likely to be experienced positively than interlocutory hearings, and enforcement hearings, appeals and trials were less likely to be experienced positively than interlocutory hearings.
“These findings suggest tentative support for reserving remote hearings for matters where the outcome is likely to be less contested, where the hearing is interlocutory in nature and for hearings where both parties are represented.”
The hearings reported included both case and costs management conferences and detailed assessments. The report said: “The majority of costs disputes were… felt to be suitable for remote determination.”
Responses from organisations and individuals with experience of working with vulnerable court users highlighted a series of concerns about the shift to remote hearings, including their problems with participating in them and communicating with their lawyers during hearings.
Looking to the future, the report recorded that large commercial firms – such as Mishcon De Reya, Hogan Lovells, Reed Smith and Freshfields Bruckhaus Deringer – advocated for the expanded use of remote hearings in commercial litigation, with limited exceptions relating to cases where foreign language interpretation is required.
“There was clear willingness and enthusiasm from commercial firms to reimagine what a Rolls-Royce service looks like in commercial litigation, with predicted benefits for the economy and the environment.”
Respondents were less positive about the use of remote hearings in longer cases, and cautioned against their use in hearings involving litigants in person.
Practical suggestions to improve the conduct of hearings included improving the equipment provided to judges, developing the functionality of platforms used to conduct remote hearings to enable better document sharing, improving systems and support for preparing and filing e-bundles, and providing access to listings and case information.
CJC chair Sir Terence Etherton, the Master of the Rolls, said: “The report is the result of an astonishing effort by all involved to produce such an informative report in a very short period of time… I hope it will form a useful basis for further research and review in due course.”
Lead researcher Dr Natalie Byrom, director of research at the Legal Education Foundation, said: “The CJC’s commitment to use the report as basis for informing further research and review is very welcome. The report highlights systemic deficiencies in the information that is currently available on the operation of the civil justice system.
“The findings underscore the vital need to invest in robust systems for capturing data in order to review the operation of the civil justice system and build the evidence base for effective practice. Improving the data that is collected is vital to make the voices of litigants in person and lay users of the justice system heard.”