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The prospect of regular remote Court and Tribunal hearings (ie hearings by way of videolink) has been forced upon us by the Coronavirus restrictions. To date they have been used only to a limited extent in Northern Ireland, but they have been taken up swiftly in England and Wales and seem to be the norm there unless there is reason to the contrary.

One concern that is already being highlighted however is how the use of remote hearings might affect the individuals who use the Courts, be they represented or not. As practitioners it is easy to become immune to the effect of some of the procedure and routine of Court hearings, but for most people they will be present in Court rarely. The practices adopted by the Court, curious as they may seem from time to time, exist largely to ensure that justice is done and is seen to be done.

We now see the possibility of significant changes being made to the system without time to consider repercussions and it is concerning that in England and Wales the experience of the individual may not be getting the attention it should.

The “Day in Court”
It is almost a cliché for practitioners to hear clients asking for their “day in court” but this should not easily be dismissed. It is fundamental to the justice system that clients have the opportunity to have their action decided by the Court, having heard argument and evidence from both sides. Clients will often want to know that they have been heard, even if the decision does not go their way.

The formality and gravitas of being present in a courtroom is surely a big part of that. The discussions in the legal profession over the years about the need for gowns or wigs for example has been all about balancing the “accessibility” that informality might bring against the gravitas that legal garb brings. Hearings in England and Wales conducted online have in some cases adopted a relaxed dress code without perhaps any great thought as to how that affects the parties.

The Legal Gazette’s report of a recent case in Nottingham describes an expert appearing in a case relating to the medical treatment of an elderly and severely mentally debilitated man wearing a rugby shirt. The comment on the same case from the daughter of the individual made clear that she felt that the process had been upsetting and unsatisfactory, with a particular focus on the lack of formality:
“I wanted my dad to have his day in court – not in someone’s front room”

Similarly, anonymous comments from a family judge in England, published online by the Transparency Project talk of the difficulties of engaging with parties, comparing it to a normal hearing in the following terms:
“I think [in a normal hearing] the parties know I have listened to them and understood their point of view. I would hope they leave with some confidence that their voices will continue to be heard throughout the process and that it will be fair. I didn’t feel I achieved anything close to that at this hearing.”

Putting the Client at the Heart of the Hearing
It should be incumbent on the justice system to ensure that the parties themselves are the focus of changes to allow remote hearings. As practitioners it is incumbent on us to do our best to ensure that this happens. As a starting point, we should talk to the clients about whether they wish to take part in an online hearing. The specific pitfalls and issues which might arise should be addressed, along with the possible need for urgency, and advantages in terms of speed and costs. If the client does not wish to take part, properly argued submissions should be put to the Court to that effect.

Alternatively, if a hearing is to go ahead, representations should be made on exactly how it is to go ahead. There may be particular ways in which to reassure the client, or particular safeguards which might be put in place. It should not be left to the Court (which necessarily has limited experience in remote hearings) on the assumption that it will have thought of everything or knows the needs of your client.

Alternatives to a Hearing
Now more than ever the legal profession should consider the alternatives to a formal Court hearing. Mediation is the tool which I have in recent years found most useful in dealing with cases which seem otherwise destined for a full hearing. It is by its nature relatively informal and can be conducted online without difficulty. It allows the client to be heard and to have that “day in court” feeling, whilst also having constant access to their solicitor for advice.
The contrast with formal court hearings is that mediation is informal by design and the mediation process allows the client to put their case directly to a mediator. The lack of formality which in a court setting can impact on “being heard” has the opposite effect in mediation. The ability to talk directly to the mediator and the fact that fewer parties will be present mean that the process is less affected by the “remoteness” of talking via videolink.

There is, as always with mediation, a clear costs advantage over a formal hearing. Beyond that, mediation provides a means of finding a broader solution, more likely to preserve personal or business relationships and to come up with creative options that the courts cannot propose.

Likewise, negotiations can be held online and should be considered ahead of time if they are a possibility.

The client
The key point in dealing with the changing landscape is that the clients should be at the heart of dealing with remote hearings, and practitioners should not be swayed from representing them by the excitement, or indeed the fear, of the new.

If you need any advice on litigation, court proceedings, or resolving disputes, please contact our litigation team or Philip directly at philip.gordon@edwardsandcompany.co.uk

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