With the recent protective measures introduced by the UK government, there is considerable uncertainty as to how the administration of justice can continue to function properly. Naturally, the situation is changing all the time with Government public health guidance updating regularly so it is important to keep up to speed.
The Lord Chief Justice has, in a detailed message on 20 March, stated among other things the default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely. That will not always be possible. Sensible precautions should be taken when people attend a hearing. They are now well-known. We all take them when out of the home. There will be bumps along the road as we all get used to new ways of working forced on us the biggest public health emergency the world has faced for a century.
This follows from an announcement on 17 March that as many hearings as possible would continue to take place with some or all participants attending by telephone, video-link or online, although no new jury trials would be commenced which were expected to last more than 3 days. The Lord Chief Justice had stated at that point that many court hearings would be able to continue with appropriate precautions being taken and that every effort should be made to maintain a functioning court system.
In the meantime, other courts and tribunals are following their own separate paths. In the Family Division, Mostyn J has stated that physical hearings should only take place where unavoidable. The Solicitors Disciplinary Tribunal will be closed from the end of this week with all substantive hearings due to take place between 23 March – 9 April 2020 adjourned. The Presidents of the Employment Tribunals for England, Wales and Scotland have also issued updated guidance which, amongst other matters, asks parties to consider whether proceedings can proceed remotely and states that judges and parties should work from the basis that written submissions should be used. In addition, where postponement/adjournment applications or requests are submitted, parties must provide evidence that the reason for the request is a valid Covid-19 related one.
Practical points for consideration
All in all, parties should be prepared for the fact that hearings may well be disrupted or cancelled at very short notice. At the current time, however, the courts do not appear to accept that disruption alone necessarily justifies adjournment of hearings. Parties would therefore be wise to consider what practical contingency plans might be necessary, including, for instance witnesses giving evidence by video link or what would happen if key parties fall unwell (for instance if the client was unable to give instructions). The courts will expect parties to be cooperative in their approach and to have considered measures which might accommodate disruptions faced.
Finally, whilst any physical hearings continue to take place, parties would be wise to consider how many individuals strictly need to attend as the court/tribunal may well adopt spatial distancing in order to minimise the risk of infection meaning that capacity within court/tribunal rooms may be smaller.