Since the start of the pandemic the legal world has successfully navigated a huge shift to remote working, both within law firms and within the court system itself. As workplaces across the UK have been forced to backtrack on a return to the office, we examine what the future holds for remote, hybrid and in-person hearings.
At present, there is no uniform approach across England as to whether hearings are taking place remotely and guidance varies across the different levels of court. For instance, the Supreme Court is now open again to the public and hearings are taking place in person. In the Court of Appeal, hearings are predominantly being held in person, with reserved judgments being handed down remotely. The High Court is taking a flexible approach to hearings but the default position for hearings of less than half a day is that they should take place remotely. In all cases, the final decision as to whether a hearing takes place remotely or in person rests with the judge.
Research published in August 2021 by the Berkeley Research Group found that the experience of remote hearings/tribunals has largely been positive and exceeded the expectations of those involved. This is in spite of the fact that almost everyone who participated in the process reported some form of technical glitch or interruption during the initial phase of adoption in early 2020. HMCTS published an evaluation of remote hearings in December 2021. Key findings include that public users attending remotely were slightly more likely to be satisfied with the overall experience of their hearing than in-person users, with benefits including greater convenience, reduced costs and removing the anxiety of being in a room with another participant, who they may be in conflict with. In addition, legal representatives were positive about remote hearings, with 93% saying they felt remote hearings were an acceptable alternative during the pandemic.
That being said, after a significant period of predominantly remote hearings the benefits of hearings being held in person again have become readily apparent. Communications between barristers, solicitors and clients are far easier when taking place in person. It is also easier for advocates to tailor their approach to judges and witnesses where they are able to see them face-to-face and not just in a box on a screen. An in-person hearing also provides a certain sense of occasion, where the parties can be satisfied that judges have taken on their arguments and justice is “seen to be done”.
However, there are a number of benefits arising out of the increased use of remote hearings and the advances in technology. In particular, hearings are now more accessible to the public than ever before. Whilst it has been possible to watch proceedings via the Supreme Court Live video link for a number of years, this is now also possible in certain cases in the Court of Appeal as well. In addition, where parties are using a live-transcript or the hearing is being held on a hybrid basis, it is now much easier for clients to follow what is happening inside the court room from their own offices or even from abroad. The time and cost savings from being able to access hearings remotely are substantial, particularly where long-distance travel can be avoided.
Under current HMCTS guidance, courts continue to remain open for face-to-face hearings. Nevertheless, given the ongoing uncertainty surrounding COVID-19 pandemic, parties must be prepared for all eventualities. Where hearings are taking place in person, parties should be mindful of the risks of a member of their team having to self-isolate and ensure that there are suitable contingency measures in place to ensure that they can participate remotely.
While we expect that going forward parties will favour hearings taking place on an in-person or hybrid basis, it is clear that participants in legal proceedings will continue to benefit from the remarkable improvements in court technology made during the pandemic for many years to come.