Parties who were due to have Court hearings over the next few months face uncertainty as to whether or not their hearings will go ahead and, if so, in what format. So what’s the current picture? The position is changing rapidly, but based on the information currently available, the status for civil cases is as follows.
In the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts, a ‘Protocol Regarding Remote Hearings’ has been issued.
The Protocol provides that, in respect of all hearings, judges, Court clerks and/or officials will, wherever possible, propose to the parties one of three solutions:
(i) that a remote communication method e.g. BT conference call, Skype for Business or Zoom is used for the hearing;
(ii) that the hearing proceeds in Court with appropriate precautions, or;
(iii) that the case is adjourned.
It says that if the parties disagree with the Court’s proposal, they may make submissions in writing, following which the judge will make a binding determination on how the hearing will take place and give all other necessary directions.
The Protocol also says that: “It will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely. Some witness cases will also be suitable for remote hearings.”
So parties can expect that, if the hearing can reasonably take place remotely, it will likely go ahead remotely. In those circumstances, the parties will need to, as necessary, prepare an electronic bundle of documents and an electronic bundle of authorities for use at the remote hearing.
In practice, remote hearings are often taking place via Skype for Business, but sometimes other telephone conference facilities are being used. In light of a concern that parties might inadvertently share privileged information with their opponents during a remote hearing via ‘screen sharing’, some solicitors are considering giving instructions to their Counsel team during hearings via WhatsApp or similar means rather than by email.
Certain Courts have given additional guidance or information, in particular:
- In the Insolvency and Companies Court, whilst non-urgent hearings listed to take place last week were frequently adjourned, the position going forward is that hearings listed will generally, and as far as practicable, go ahead and take place remotely. The statement on the Rolls Building Cause List provides that: “Where hearings are currently listed the Applicant/Respondent/Claimant must contact the court as soon as reasonably practicable to inform it if an adjournment is required or if the parties wish for the hearing to progress remotely. Arrangements for a remote hearing will be made where practicable.”
- In the Queen’s Bench Division, the Listing Office is working from home and will be dealing with urgent business only. Parties are required to file hearing bundles by ce-filing or electronic drop box.
- In the Technology and Construction Court, judgments are being handed down remotely.
As the Covid-19 situation continues to develop, the approach to hearings may also change. It will be necessary for parties to liaise closely with the Court, especially listing officers, and cooperate proactively with their opponents, in order to ensure that hearings can still go ahead effectively during this difficult period.