Hybrid hearings should be here to stay
This article was first published as the Introduction to Litigation PR & Communications for the Chambers and Partners Litigation Support Guide 2021, here.
The COVID-19 pandemic has thrown up a number of interesting questions for the future of how we work and the legal industry is no exception. Working patterns fundamentally shifted when offices closed; leading legal practitioners and their expert teams worked from home, and remote hearings were introduced in the civil courts. For all the pandemic- and technology-induced teething problems, remote hearings have proven remarkably successful in ensuring the continuation of civil court cases.
Although some judges and barristers found the technology irksome, there was the added benefit of being able to attend hearings from the comfort of your home or chambers. And as the days progressed there were fewer and fewer microphones left open or cameras switched on or off inadvertently. In fact, remote hearings started to feel quite normal.
Virtual hearings also presented a number of opportunities for litigation PR professionals. A list of attendees at each remote hearing was often visible, giving a guide to which journalists were attending the hearing remotely. It also became easier for international journalists to attend hearings, and for busy journalists to get on with their work whilst also keeping a weather eye on proceedings. Public relations advisers could also brief journalists more easily throughout hearings via email and WhatsApp, rather than having to wait for court breaks or lurk at the back of the courtroom near the door, to catch visiting journalists departing mid-hearing.
While for many law firms remote working to some degree will be here to stay post-pandemic, the future of remote court hearings is less clear. As an increasing percentage of the population has been vaccinated, many hearings have moved to a hybrid model or have resumed sitting in person only. It remains to be seen how much the use of hybrid hearings becomes a fundamental part of open justice in England and Wales.
What has been said?
In March Lord Burnett of Maldon, the Lord Chief Justice, stated that “remote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas…this will ensure that as restrictions are eased, the administration of justice continues to be delivered safely”, implying that the present intention is to continue to phase out both remote and hybrid hearings.
Following this, in May 2021, the Bar Councils of England and Wales, Ireland, and Northern Ireland and the Faculty of Advocates of Scotland issued a joint statement arguing that remote hearings should be used for procedural business but not for any hearing “that is potentially dispositive of all or part of a case”, and that “remote hearings deliver a markedly inferior experience”.
Policies regarding remote working have been changed by some firms following the pandemic. For example, Linklaters announced in August 2020 that employees could work from home up to 50% of the time by prior agreement. In contrast, the lack of certainty on the future of how commercial court hearings will be resumed poses interesting questions.
While a return to normality is greatly awaited, it should not be embraced wholeheartedly. It should be considered what has been gained and lost throughout this enforced move to online courts, and what stands to be lost if we return to in-person hearings only.
One of the most often quoted legal aphorisms is that “Justice must not only be done, but must also be seen to be done” (Lord Hewart, 1924). The international nature of the courts in London means that some of those most invested in a case, such as executives of a multinational company based far away, may be prevented from attending a hearing due to competing pressures on time, and the travel required.
Remote hearings have nullified this somewhat. Over the past year we have experienced, for example, our US clients being able to view hearings from afar and compare notes on proceedings with us quite effectively. Similarly, when a client has multiple legal teams working in a number of jurisdictions, the ability for US-based lawyers, for example, to attend a London hearing without travelling across the Atlantic can allow for a more joined-up approach that benefits both the client and open justice. Transcripts are still a given, of course, but they do not always convey the full picture.
For cases of wider public interest in other jurisdictions that may not have court reporters based in London, and where London court reporters are unable to attend a hearing, the ability for international media outlets to have someone attend court has been greatly enhanced by remote hearings. Instead of relying on transcripts and second-hand accounts published by international media, journalists are now able to attend online and focus in detail on those parts of the case that are of most interest to their readers.
A more fundamental issue is often simply the amount of space available in London courtrooms, even outside of the pandemic. High-profile commercial cases held in the Rolls Building will often see the room packed, with journalists and observers standing around the perimeter, or in some cases not able to attend at all for lack of available space. This can even be the case in the Royal Courts of Justice for certain cases of particular importance. The simple fact is that no matter how much seating is allocated in physical courtrooms it will sometimes not be enough for all interested parties to attend. Indeed at present if one side wishes to minimise media and public scrutiny, they can seek to pack the courtroom with junior lawyers and other litigation support professionals in order to reduce the amount of space available to the other side.
Wider accessibility issues should also be considered. The ‘levelling-up’ agenda and efforts to move wealth outside of London can be better served by online hearings. Students studying law inside London have an inherent advantage over those studying law outside it. Major international disputes are heard on a daily basis in London, but far less frequently in, say, Newcastle. Allowing students at other universities to attend these hearings without being required to travel to and find accommodation in London can be of great benefit. More broadly, for those unable to travel due to disability, online hearings make the law infinitely more accessible than ever before.
Quality of Justice
Despite the boons for open justice and accessibility, however, clear and legitimate concerns exist as to the quality of hearings held remotely. As with all new technology, remote hearings have been prone to glitches. Whether this takes the form of poor broadband signal in remote areas, internet outages or hardware problems, these delays can potentially snowball, especially when the user error factor is added in. Whether interrupting arguments, disrupting the flow of cross-examination, or simply delaying the commencement of proceedings, this can place pressure on already tight court timetables.
The joint Bar Councils and Faculty of Advocates’ recent statement makes a number of compelling points. The lower quality of judicial interaction means “hearings can be less effective at isolating issues and allowing argument to be developed”, while issues in cross-examination “may have an adverse impact on the quality of the evidence given”.
The release goes on to highlight the “very considerable challenges” that remote hearings pose to the effective presentation of complex evidentiary or narrative submissions. Those who have been in online meetings will attest to the difficulty of an effective back-and-forth, particularly where multiple people are seeking to discuss an especially technical point.
Perhaps the most notable phrase in the press statement is that “the very real, but often intangible, benefits of the human interaction inherent in in-person hearings cannot be ignored”. Despite technology allowing the courts to remain open, it has not been without its impacts. Reports have consistently been released in the past year discussing the impact of the pandemic on the mental health of lawyers, a profession already known for punishing workloads and issues around mental health. Positively, a number of firms are working to improve the situation and provide additional support to their staff, which will hopefully outlast the pandemic.
While protecting open justice and increasing the accessibility of English and Welsh justice is deeply important, it is clear that not all the results of remote hearings have been beneficial. Whether or not the justice is accessible or not hardly matters if it is not of the quality that the English courts are known for, or if it endangers the health of legal practitioners.
Despite all the technological innovation of the past year the courts have long been moving towards digital accessibility. In 2011 the Supreme Court launched “Supreme Court TV” with reference to Lord Hewart’s famed line, stating “justice being seen to be done”. The Court of Appeal (Civil Division) began live streaming selected cases in November 2018, with the stated aim being “to improve public access to, and understanding of, the work of the courts”.
While the changes since 2020 have been driven by necessity, the need to further expand the understanding of justice among the public has been understood by the courts for a decade. In light of this, simply rolling back the ability to conduct virtual and hybrid hearings now risks losing organisational knowledge amassed by the justice system during the pandemic to the detriment of justice as a whole.
While remote hearings come with their issues, the courts should strongly consider pushing forward and reforming, making hybrid hearings the norm across the High Court, Court of Appeal and Supreme Court. As the United Kingdom continues to open up, it should become the norm that all direct participants can attend in person. Proceedings can take place with the human elements restored for those directly involved, along with all the associated benefits for cross-examinations and the development of a case.
Simultaneously providing a livestream of the courtroom during these hearings, as is done in the Supreme Court, would serve the stated purpose of Lord Burnett in managing footfall in the courts, but it would also allow those with an interest in a case – whether a journalist, student of law, or a stakeholder from another jurisdiction – to attend when otherwise they would not be able to do so, or at least could not so easily do so.
Vaccination rates are lower in many other jurisdictions than in the United Kingdom, and with foreign litigants making up approximately 45% of all those litigating in the Courts of England and Wales, it is vital that the courts be prepared for continued limitations on travel. Allowing interested parties from across the globe to continue to view hearings online, even if they are otherwise taking place in person only, would be of great benefit.
By providing live streams of all civil proceedings, the openness of justice would be improved, cementing the position of English justice as world-leading and transparent. This should be a priority for all in the legal profession, as well as for Government, as competition from other jurisdictions continues to increase.
Hybrid hearings should be embraced as a thing of the future and not confined to the past.