COVID-19 is forcing all service providers to consider innovative and creative solutions for service delivery, not least the Courts Service of Ireland.
On 31 March 2020, the Chief Justice announced that remote hearings would be tried on a pilot basis. This follows on from measures which had been put in place to allow case management and administrative matters to be dealt with electronically. The new legal term begins on 20 April 2020 and testing is currently taking place on a system which would allow some cases to be heard remotely. As matters develop, it is expected that the range of cases which might be appropriate for remote hearing will be expanded but in the first instance the Courts are looking at actions that do not involve multitudes of witnesses.
The UK experience
As to what we might expect, it is useful to look to the UK experience. We are aware of at least two English Commercial Court matters which have been heard in full since mid-March (in accordance with the UK’s Coronavirus Act, 2020). Both trials were conducted using Zoom teleconferencing technology and we understand that any security concerns around data protection have been ameliorated through a variety of technical methods. In addition, special purpose IPads were issued to the various witnesses/parties for the sole purpose of participating in the hearing and containing no other data.
Justice in public
The Courts Service is cognisant of the need for justice to be carried out in public and there has been a suggestion that bona fide members of the press could still attend a courtroom where the hearing would be broadcast on a screen and the press could then report on the proceedings.
Again the UK position is interesting in that since 2013 the UK Supreme Court has had its own YouTube channel, as has the Civil Court of Appeal. In one of the recent UK cases (involving the Republic of Kazakhstan and BNY Mellon), the hearing was entirely conducted in a virtual courtroom and streamed on YouTube. It seems we are some way off this in Ireland but it certainly could not be ruled out in the future.
The English High Court recently rejected an application for the adjournment of a five week trial due to be held in June of this year. The Court was of the view that despite the restrictions on movement currently in place it would be possible to safely and fairly hear the case through the use of technology. It’s worth noting that in this instance though a fairly large number of witnesses were to be called – 4 witnesses of fact and 13 expert witnesses. There were also a large number of contemporaneous documents dealing with the relevant events. The Court may well have taken a different view if the case were to be entirely decided on the basis of oral evidence where the demeanour and attitude of witnesses when giving evidence might take on a greater significance.
We must assume that every case will be looked at individually as to its suitability for remote hearing but there is no denying that issues will arise as they progress. For example, it may be difficult to be confident that a witness is not being coached or fed information when everybody is not physically present in the same room. Counsel may also need to tailor their style of cross-examination to suit video link evidence.
Assuming all goes to plan and remote hearings commence in Dublin next week, the question arises as to what use virtual/remote hearings may have in the future.
While the constitutional obligation to administer justice in public is of paramount importance, there are clear advantages and efficiencies to remote/virtual hearings, particularly when dealing with parties or witnesses in different jurisdictions. The former will likely outweigh the latter but in the context of administrative/case management matters, it is quite conceivable that these might routinely be dealt with electronically in the future, particularly where adjournments on consent are sought. This would undoubtedly lead to costs savings in litigation.
It is highly unlikely that, once the current crisis passes, a significant portion of hearings would be conducted virtually but it is a useful tool to have available and developing the technology to allow such hearings will undoubtedly benefit parties in the future.