Covid-19: Driving a revolution in Court e-services

When social isolation caused social interaction to cease those of us that act for clients in litigation, naturally assumed that the Court System would grind to a halt. Nothing could be further from the truth which is, when you really think about it, actually not that surprising given how predominant English Law and the English Courts are in Global Dispute Resolution.

The Courts reacted proactively and quickly, breaking the network of Courts into three categories:

1. ‘open courts’ which are open to the public for essential face to face hearings;
2. ‘staffed courts’ which have staff and judges working in the courts but the public is not allowed; and
3. ‘suspended courts’ which have been temporarily closed.

The Courts also published a daily tracker accessible here, detailing which Courts fall under which category. This tracker is updated regularly, underlining how the situation is changing on an almost daily basis, in step with amended scientific and government advice.

The Courts also published new guidelines on how parties should interact in this period, the filing of ‘e-bundles’ remotely rather than paper bundles, and provisions for hearings to be undertaken by telephone or video conference (the courts preferred medium being business Skype).

Armed with these changes the Courts have largely gone about their daily business as normal.

English Courts suddenly feel like 21^st Century institutions and this change has left many solicitors and barristers scrambling to adapt to the change in mindset. This is a game changing moment for an industry which is still in mourning for Queen Ann (did you never wonder why barristers wear black robes ?).

Remote Trials – How are they going?

The switch to remote working has, to date, been relatively smooth.

On 31^st March, for example, the first ever trial to be conducted via Skype, a Court of Protection case dealing with issues of medical treatment, took place. The process was pretty much seamless despite the fact that it involved five parties and eleven witnesses.

Interestingly, to satisfy requirements the case must be heard publicly, the Press Association also attended the trial remotely. This raises the question, is public awareness and scrutiny better achieved by remote hearings than relying on the public to physically attend Courts ? The answer to that is, in our view, self-evident.

In the early days of the new remote way of working, traditional law firms were naturally resistant, and this led to a handful of cases that help to define the parameters everyone is now working to.

A good example is Conversant Licensing v Huawei Technologies [2020] EWHC 741 (Pat), in which the claimant attempted to argue that the case had to take place ‘on paper’. A submission that the judge gave short shift to, it being clear such an argument did not reflect the Civil Procedure Rules (CPR).

Another example is the unreported case of Hyde and Murphy v Nygate, listed for trial in June 2020, the claimant applied for an adjournment on the grounds the case was too complex, and having four witnesses and thirteen expert, impracticable for a remote hearing. The Judge disagreed.

A popular emerging argument surrounds the ‘inadequacy’ of ‘e-bundles’. The usual argument seen is that the e-bundle is ‘unwieldy’ or ‘confusing to the witnesses’. Strangely, it is not witnesses’ that are complaining about e-bundles but rather those traditional solicitors and barristers that insist on using a paper version of the e-bundle while sitting at home only able to argue the merits of using technology in the Court process in front of a Judge because of Skype. The Court understand that it takes time to change habits, and because of this their approach has been firm but understanding. Guidelines are continually being evolved to iron out the wrinkles and, argument by argument the process is becoming increasingly ingrained and robust.

Read in the round, the theme is clear, e-hearings are here and, in our view, here to stay.

Market View

International private courts have opened around the globe in places as diverse as: Dubai, Singapore, Hong Kong, Kazakhstan, Abu Dhabi and Qatar. Each of these is based on English Law and has sought to convince international businesses to resolve their disputes through them rather than the High Court of England and Wales.

The desire to legitimise these Court has led to ‘celebrity swoops’ for predominant retired English Judges. The most recent of which is the announcement that Lord Woolf, who is responsible for changing the way that the English Court’s operated in 1999, has been recruited to lead the new Astana International Finance Centre Court in Kazakhstan.

This public relations exercise is coupled with a unique selling point, that hearings can be done remotely. This means disputes can be conducted by legal teams (and parties) located all over the world at lower costs, and on shortened waiting times. These advantages have led to private courts making inroads into a market which has, together with our financial systems, kept London at the centre of Global trade.

With Covid-19 forcing the Courts to modernise, we think the dissipation of business cases from London to these new private courts will reverse.

This means that while Covid-19 is undoubtedly a global tragedy, it has led the English High Courts to embrace technology which may well help them remain a dominant global force and a key driver for the British Economy for the next decade.