Remote Access to Justice

26th March 2020

COVID-19: ACCESS TO JUSTICE

One of the greatest professional challenges for litigators since the escalation of the Coronavirus pandemic has been the lack of clear information and guidance as to how, if at all, listed Court hearings are being dealt with in these times of imposed social distancing, and the potential issues that poses for access to justice.

This short briefing sets out an overview of the changes in procedure and practice that have so far been adopted. It should however been recognised that the situation is constantly evolving and various online resources should be checked regularly for updates.

HMCTS now has a dedicated webpage providing a daily operational summary on courts and tribunals, during the coronavirus (COVID-19) outbreak. It is intended that the page will be updated daily by 9.00am. The relevant link is: https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak#hmcts-operational-summary-26-march-2020

On 20 March 2020 the Master of the Rolls published a Protocol Regarding Remote Hearings which adopts the default position that remote hearings should be used wherever possible in the current pandemic. The Protocol applies to the County Court, High Court and Court of Appeal (Civil Division) including the Business and Property Courts, and (rather optimistically in my opinion) envisages remote hearings taking place by various communication methods including, but not limited to, “BT conference call, Skype for Business, court video link, BT Meet Me, Zoom and ordinary telephone call”. The relevant link is: https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-24_03_20-1.pdf

On 24 March 2020 the 116th Practice Direction Update was published, adding a new PD51Y to the CPR. PD51Y, which is effective from 25 March 2020, makes provision for private hearings to be conducted remotely, by video and audio during the COVID-19 outbreak and clarifies the way in which the court may exercise its discretion to do so.

PD 51Y includes the following provisions:

– A court may order that a hearing must take place in private where proceedings have been directed to be conducted wholly as video or audio proceedings and it is not practical for the hearing to be broadcast in a court building. This is consistent with the power to derogate from the principle of open justice, as well as CPR 39.2. Where such an order is made, the provisions of CPR 39.2(5) do not apply.

– Where practical, a hearing held in private must be recorded in a manner directed by the court. Where authorised, the court may direct the hearing to be video recorded (section 32, Crime and Courts Act 2013 or section 85A, Courts Act 2003). Otherwise the hearing must be audio recorded.

PD 51Y will cease to have effect on the date on which the Coronavirus Act 2020 ceases to be effective. The relevant link is: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51y-video-or-audio-hearings-during-coronavirus-pandemic

Finally, the Coronavirus Act 2020 has been given royal assent and is now in force. Please see Five Paper’s separate article “Legal Update: COVID-19” in this e-newsletter by Angela Hall, Elizabeth England and Tristan Salter for commentary on the impact of some aspects of the new law for social landlords. The relevant link is: http://www.legislation.gov.uk/ukpga/2020/7/pdfs/ukpga_20200007_en.pdf

Ben Maltz