Following the outbreak of coronavirus (COVID-19), social distancing has been important when controlling the spread of the virus. In response to this the following changes have been made to ensure legal matters may continue while still following government guidelines.
It has been stated by the Lord Chief Justice of England and Wales that hearings will only be postponed where absolutely necessary and otherwise take place as remote hearings.
The judiciary of England and Wales has stated that remote hearings should be used wherever possible during the current pandemic. Such protocol applies to hearings of all kinds including trials, applications and those in which litigants are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts.
Although most Court buildings have remained open the objective of remote hearings is to minimise the spread of Covid-19.
It is the judge’s decision as to how a remote hearing will be conducted. Hearings conducted remotely will be treated in accordance with CPR and it is still the judge’s duty to determine all issues that arise in the case in accordance with normal principles.
Available methods for Remote Hearings
- BT conference call
- Skype for Business
- Court video link
- BT MeetMe
- Telephone call
Before ordering a remote hearing a judge must check with the listing office that suitable facilities are available.
If the parties do not agree with the court’s proposal in relation to the hearing, they should make a submission in writing, email or CE-filing, copied to the other party, proposing a more appropriate solution. The judge will then make the decision as to what way the hearing will take place and give the necessary directions.
Court may also wish to fix s short remote case management conference in advance of the hearing to allow for directions to be made in relation to what technology will be used and any other relevant matters.
Issues to be addressed prior to the hearing:
- In accordance with CPR 39.2(3)(g) – whether the hearing is to be in public or private, and if private, on what grounds should it be private.
The judiciary of England and Wales states that remote hearing should as far as possible still be public hearings. This can be achieved if a judge, clerk or official relays the audio and video footage to an open court room; allowing accredited journalists to login in the remote hearing; and/or live streaming the hearing over the interment.
- In accordance with CPR 39.9 – how the hearing is to be recorded, or if an order can be made to properly dispense with the recording.
In compliance with CPR 39.9 recording the hearing can be achieved in a number of ways; recording audio using a courtroom’s normal recording systems; recording the hearing using the remote communication programme used i.e. skype business; or the court using a mobile telephone to record the hearing. It is not permitted for the parties to record the hearing without the judge’s permission.
Delays in Hearings
Hearings may be delayed due to illness if court finds they are unable to adequately staff the system.
If parties are considering commencing action, it is advised that they issue and serve claim forms as soon as possible to avoid no further delays and avoid any time limits whether contractual or statutory.
The court have confirmed that if resourcing does become an issue urgent applications such as injunctions will be given priority and heard remotely through video links and e-bundles.
It is expected that there will be difficulty where there may be multiple witnesses or experts involved who are expected to give oral evidence. in these circumstances it is likely that the hearing is postponed
Government guidelines have indicated that all who are able to work from home should work from home. Therefore, signing documents in person is no longer a possibility, instead electronic signatures are to be used instead.
What is considered an Electronic Signature?
An electronic signature is a way to sign a document in the online world. Electronic signatures may come in a variety of forms including:
- An electronic representation of a handwritten signature
- A digital representation of characteristics e.g. fingerprint or retina scan
- A signature created by cryptographic means.
The Validity of Electronic Signatures
The Courts consider the use of electronic signatures generally acceptable, including where there may be a requirement for a signature. A judge will also consider the facts of the case to consider whether the signature has an authenticating intention. There may also be other requirements for the validity of the signature such as a witness that will be satisfied.
Standards of Electronic Signatures
eIDAS is the EU regulation that requires electronic signatures to meet a certain standard which fall into either ‘Advanced’ or ‘Qualified’
An advanced electronic signature is one that is:
- Uniquely linked to the signatory;
- Capable of identifying the signatory;
- Created using electronic signature creation data that the signatory, with a level of confidence, use under their sole control; and
- Linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
Whereas a qualified electronic signature required an enhanced identity proof. Qualified electronic signatures are not widely used in the UK.
London Litigation Solicitors
Our London litigation lawyers act as tenaciously as the client’s needs and case demands. Our chambers are located near the High Court and Central London County Courts in the Royal Courts of Justice in Central London and can act with speed on your litigation matters. We can accept urgent instructions and obtain injunctions rapidly. For example we obtained an out of hours emergency worldwide freezing injunction for a client in the diamond trade. Our client’s case required overnight preparation of affidavits and attendance upon a Judge at his private residence followed by immediate enforcement action and further attendance the next morning at the High Court. We achieved all this in-house as we are a firm of solicitors and barristers.
Instructing our Litigation Lawyers
We ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before selecting the appropriate course of action in order to reduce time and expense. Liability for costs is always an issue in litigation and based on our extensive litigation experience we provide our clients with as much strategic, practical as well as carefully considered legal advice in order to ensure minimum risk in respect of costs. Where appropriate we encourage the use of alternative dispute resolution (such as mediation and without prejudice negotiation) and our lawyer’s negotiation skills are first class. If early settlement at advantageous terms is not possible, we are extremely experienced and capable at navigating our clients through the litigation process.