The judiciary have published a protocol on the conduct of remote hearings in civil justice in England and Wales.
The protocol, which can be viewed here, notes that the current pandemic necessitates the use of remote hearings “wherever possible”. It applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts.
The protocol, which is to be applied “flexibly”, says that whilst most court buildings currently remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19.
“The method by which all hearings, including remote hearings, are conducted is always a matter for the judge(s), operating in accordance with applicable law, Rules and Practice Directions. Nothing in this Protocol derogates from the judge’s duty to determine all issues that arise in the case judicially and in accordance with normal principles,” it says.
“Hearings conducted in accordance with this Protocol should, however, be treated for all other purposes as a hearing in accordance with the CPR.”
- What should happen when a hearing is fixed;
- The remote hearing itself;
- Preparations for the remote hearing.
It is inevitable that undertaking numerous hearings remotely will cause teething troubles, the protocol says. “All parties are urged to be sympathetic to the technological and other difficulties experienced by others.”
The protocol notes the contents of CPR Part 39.9 (covering recording of the eharing) and CPR Part 39.2(3)(g) (the need to hold hearings in private if the court is satisfied it is necessary “to secure the proper administration of justice”).
It says there are, therefore, the following legal issues to be addressed before any remote hearing can begin:
- whether the hearing is to be in public or in private; if in private, on what grounds, and
- how is the hearing to be recorded, or can an order properly be made to dispense with recording?
The protocol says: “As to the first, remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways: (a) one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open court room; (b) allowing accredited journalists to log in to the remote hearing; and/or (c) live streaming of the hearing over the internet. The principles of open justice remain paramount.
“As to the second, the recording of hearings and compliance with CPR Part 32.9 can also be achieved in a number of ways: (a)recording the audio relayed in an open court room by the use of the court’s normal recording system, (b) recording the hearing on the remote communication programme being used (e.g. BT Meet Me, Skype for Business, or Zoom), or (c) by the court using a mobile telephone to record the hearing. It is not, however, permitted for the parties to record the hearing without the judge’s permission.”