As with all things Covid-19, the landscape is continuously shifting. This note therefore reflects the position as at the date of writing (25 March) but it is likely that further guidance will be issued in the coming days and the position will change further. We will keep you abreast of developments as they unfold.

The Lord Chief Justice announced on Friday 20 March 2020, that in light of the current Corona Virus pandemic, all Courts were moving to a remote working basis. Therefore, the courts have advised in the last week that remote court hearings should be used where possible but they acknowledge that there will be instances where physical hearings are required, for instance, where a party is a litigant in person or there is a need for evidence to be given in person. Detailed guidance was issued on this on 19 March 2020 (see here).

The courts were clear that parties should try to negotiate and agree remote hearings to avoid physical hearings and that there should be a renewed focus on settlement. Adjournments should not be the default position. The courts are tasked with maintaining a justice system and need to avoid mass adjournments and the issues delays would cause to litigating parties, the speed of justice generally and also the logistical nightmare that would follow for the courts in respect of the backlog of cases created.

However, given Johnson’s announcement of 23 March 2020 and stricter social distancing measures it seems likely that all physical hearings will be suspended soon. As matters stand, to proceed with a physical rather than a remote hearing, there would need to be an essential or unavoidable need and adequate safety measures would need to be put in place. There may be such instances, but we suspect that hearings that cannot be dealt with remotely will most likely end up being adjourned. The Lord Chancellor has also now stated that, in some circumstances the court fee for an application to adjourn a hearing will be waived (see here).

For anyone that currently has a hearing listed for a date in the next 12 weeks, parties should be proactively seeking to agree a remote hearing wherever possible.

Although there are clear benefits to the use of remote hearings, there are also a number of challenges. It remains to be seen as to whether the necessary IT infrastructure is in place for the courts to be able to switch to remote hearings. Aside from the technical practicalities, the fundamental principles of open justice and rights to a fair trial and access to justice are also in play. These need to be factored into the remote hearing process.  Judges have urged parties to be ‘creative’ and exercise a degree of flexibility. Hopefully, as this situation continues the courts and litigants will adapt to new ways of working.

We expect to see further guidance on these issues in coming days. In the meantime, if you are in litigation then you should be actively engaging with your counterparty to discuss holding any upcoming hearings remotely and ensuring you have access to a remote facility.

Find all our Covid-19 related advice here.

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