Judicial guidance on listing of hearings remotely

Senior judges have issued guidance to the judiciary on listing hearings in light of the current coronavirus situation. This gives litigants some clues as to how the court will approach upcoming hearings.

Three weeks into lockdown, practitioners and the courts have had some experience of remote hearings.  The Lord Chief Justice, Master of the Rolls and President of the Family Division have circulated a note to the judiciary with guidance on listing hearings during the current coronavirus crisis.

The key takeaway is that listing decisions remain in the hands of individual judges.  The LDJ, MR and PFR declined to issue firm national guidance as this will not be able to account for the strengths and weaknesses of local resources (staff and technology).  However, they did make the following comments which give practitioners and litigants an insight into the factors under consideration when a judge is deciding whether to proceed with a hearing and, if so, by what means:

1. Judges should not feel pressured to continue to hear the same number of cases.  Anecdotal evidence suggests that hearing cases remotely is more tiring than hearing the cases in person.  The same has been reported by teachers delivering classes remotely.  Accordingly, lists of about half their usual length may well be appropriate.  Across all courts in England and Wales, about 40% of hearings have gone ahead.
2. Not all cases are suitable for being dealt with remotely; even if all the parties agree.  The overarching consideration is whether fairness and justice can be achieved remotely. Some hearings will, therefore, have to be postponed.
3. Short hearings, case management hearings, or those involving only submissions, rather than evidence, are more likely to be appropriate for remote hearing.
4. If all parties oppose the trial being conducted remotely, that is a powerful factor in not proceeding with a remote hearing.
5. Careful consideration should be given to any remote hearings involving litigants-in-person or parties (or witnesses) for whom English is not their first language.

Other insights include reports of parties behaving inappropriately or shouting at judges; a script to be read at the outset of hearings is expected to be circulated shortly and parties are to be told "in plain terms" that a remote hearing is a court hearing and they must behave accordingly.  The judiciary's IT team is currently exploring whether they can mute parties who misbehave!