Remote Court Hearings: Guidelines and Tips for Parties and Practitioners
A new Practice Direction has been issued by the Supreme Court providing guidance on how applications will be heard remotely. This was a direct result of the COVID-19 pandemic and the urgent requirement for social distancing, making it no longer possible for most hearings to be heard in court.
The important points to take home from these guidelines are:
- Court staff will be in direct contact with all participants to explain any technical issues about joining a remote hearing;
- On the evening before the hearing, the Registrar should be sent by email details of all the participants involved so they are easily identifiable during the hearing;
- On the morning of the hearing, each side should send the Registrar an email containing a list of documents likely to be opened in the course of submissions and a list of the exact parts of the documents they will be referring to;
- At the commencement of the hearing the presiding Judge will indicate his/her understanding on those who appear on behalf of the parties and those who will be making submissions;
- Members of the legal teams looking to refer to documents that have been electronically filed, should be able to set out the manner in which they were filed so members of the court will be able to access them easily;
- The virtual meeting room does not provide a means for the legal teams to communicate and it is strongly advised that another platform to communicate during the hearings is set up such as a WhatsApp group.
Remote Hearings in Action
On 20 April 2020, the Supreme Court conducted its first remote hearing. Chief Justice Clarke and the various other legal teams were in their homes for the case management hearing which concerned an appeal involving Friends of the Irish Environment (FIE) against the Government, and various other state parties. This was due for hearing on the 22 June 2020. The FIE were appealing a High Court decision in respect of its claim that a Government plan for tackling climate change is flawed. The Supreme Court Registrar was based in court number 29 of the Four Courts along with a reporter to satisfy the constitutional requirement that justice must be administered in public.
Counsel for the FIE, outlined that this case involved a large number of documents and his side were anxious to have the case heard through remote hearing as soon as possible. Counsel for the State stated that she could not say if this case would be suitable for a remote hearing and asked for more time to clarify the State’s position. She outlined that a review group is examining a range of issues including, logistical issues but in the interim the State would be happy to proceed on the assumption that the appeal would be heard remotely.
Chief Justice Clarke fixed a further case management hearing for 8 May 2020. On that date, he concluded that all was in order for the appeal to proceed via remote hearing, on the 22 June 2020. It has been allocated two days.
Chief Justice Clarke outlined during the hearing that, “Remote hearings will be suitable for some types of proceedings in the High Court and a limited number of cases in the District and Circuit Courts. The Court Presidents and the Courts Service are exploring ways in which to increase the number of cases which can be dealt with in physical hearings.”
Remote hearings began to operate in full on 11 May 2020, using a video streaming app called PEXIP. Parties will be able to use other services to interact such as Zoom, Skype, Cisco Webex and Teams.
Since this remote hearing took place there have been numerous other hearings that have been heard virtually. This includes the first virtual hearing of a District Court case which took place on 15 May 2020. This case involved an application for an interim care order for an unaccompanied child victim of trafficking. The County Registrar set out the guidelines for virtual hearings, including that one participant would speak at a time and the other participants would mute their microphones. Observers such as the Child Care Law Reporting Project (CCLRP) kept their cameras off and microphones muted. The Judge stated that the Court had concluded that the case could be conducted virtually with no unfairness to either party.
Positives and Negatives to Virtual Hearings
Some positives and negatives have been discovered when putting these hearings into practice; these include:
- Remote hearings are not suitable for all types of cases and as a result there will be significant delays due to this pressure on the courts services;
- There may be visual difficulties with parties trying to participate in the hearing while also referring to court papers;
- Background noise and interruptions may cause disturbances during the hearing;
- The introduction of e-filing to court rooms has positive impacts for climate change with a reduction in the use of paper;
- Virtual court rooms would be a more cost-effective way of administering justice where possible.
UK Virtual Hearings
In England and Wales, a significant percentage of hearings have continued, either in traditional fashion or remotely. The introduction of the Coronavirus Act 2020 has facilitating the live broadcasting of hearings online. The recent case of National Bank of Kazakhstan v The Bank of New York Mellon, took place virtually over a number of days. This case was streamed publicly to satisfy the requirement similar to our constitutional requirement that justice must be administered in public.
Some minor issues arose during this hearing such as the Judge having to ask Counsel to mute their microphone to avoid parties being interrupted and witnesses joining the proceedings too early.
Tips for appearing or instructing during a remote hearing
- The Parties should, prior to the hearing, make sure they can access the virtual court room via the PEXIP app;
- Parties and Practitioners should have all documents open prior to the hearing to prevent interruption and confusion;
- You should consider placement of your camera and where you have placed the documents you wish to make submissions from, so you are not looking down at documents when talking to the Judge;
- The virtual court room does not allow for communication amongst legal teams. You should set up a separate platform such as a WhatsApp group for this in advance;
- Always mute your microphone when you are not speaking and keep your phone on silent;
- Remember your background and think about what others will see behind you.