If you are interested in remote courts then you should read, in full, the report of the Civil Justice Council released last week. This was funded by the Legal Education Foundation (LEF) and written by Dr Natalie Byrom, its Director of Research and Learning. Even were this website not funded by the LEF, I would hail this project as a natty bit of footwork and an excellent contribution to our understanding of digital courts. There are some lessons here for how court modernisation should proceed – in any jurisdiction.
This was a self-styled ‘rapid review’ launched on 1 May and concluded on the 15th – though it took a further fortnight to be written and approved. It had a dual aim – to understand the impact of Covid-19 on court users and to inform ‘thinking about a longer-term review’. It got widespread support from the civil justice community. Over 1000 responded to an online survey – though a limited input from self-represented litigants. The report gives a picture of a system under pressure; just about coping; but with improvements to be made.
The findings with long term implications were strikingly similar to the earlier study by Joe Tomlinson and his team for the Public Law Project. Adjusted to reflect this report, these may be grouped under five headings:
- Open justice requires easy external access.
- There must be agreed specified minimum technical requirements.
- There should be best practice procedures.
- Litigants in person have particular needs.
- There is an ‘urgent need to improve the quality and quantity of data and information available about the operation of the civil justice system’.
Dr Byrom’s study revealed ‘ a divide in practice and experience between the upper and lower courts’. Only 14 of the 68 County Court hearings centres published details on how to attend remote hearings and these ‘varied considerably in terms of content’. Another division was emerging – between open justice for the accredited media and access ‘for members of the public, legal bloggers and representatives of NGOs’. So, we urgently need to improve the way in the media and the public can be given information about hearings and how to access them.
Minimum Technical Requirements
Among recommendations for technical requirements were improvement in ‘the equipment provided to judges and developing the functionality of platforms used to conduct remote hearings to enable better document sharing’. It was also necessary to improve ‘systems and support for preparing and filing e-bundles and providing access to listings and case information was also emphasised’.
There was a clear need for improved technology: ‘Almost half of all hearings experienced technical difficulties: – in 44.7% of hearings respondents reported that there were problems with the technology used. More technical difficulties were experienced during fully video hearings than fully audio hearings: – 50.8% of respondents who had participated in video hearings reported experiencing minor problems during the hearing, and 12.9% reported experiencing significant difficulties during the hearing … 30.4% of respondents reported that no-one had provided technical support. Many respondents reported that technical support had not been used or needed. 18.1% of respondents reported that the judges clerk had provided the technical support for their hearing, and 24.1% of respondents stated that someone else had delivered this function … Higher proportions of hearings in the County Court proceeded without technical support (36% of hearings in the County Court did not have technical support).’
The technical problems were generally about call connection and audio. Rather suprisingly perhaps, the problems were often at the judicial end: ‘In many cases, the technical issues lay with the technology available to the judiciary – one respondent commented: The judge’s connection as ver poor, despite having a dongle (I think) supplied by HMCTS and he was unable to participate by video. The attending lawyers spent longer waiting for him to connect than we did on the substantive part of the hearing.’
The report contains an itemised and detailed list of suggestions for technology improvements which it may be worth repeating:
i.) Conduct dry runs to test the technology in advance of the hearing
ii.) Provide sufficient notice of format so all participants can ensure suitable
technology is in place
iii.) Allocate more time before the start of each hearing to deal with
iv.) Provide direct contact details of parties and judge in advance of hearing
v.) Have a backup line of communication
vi.) Vet the quality of e-bundles
vii.) Give longer notice of which judge is going to hear the case and enable
hard copy bundles to be delivered
viii.) Allow parties to say whether they easily use the chosen platform or not
i.) Clearer guidance on e-bundles and filing
ii.) Guidance drawing attention to technical incompatibility issues or prior
iii.) Clearly specify who is responsible for setting up any remote hearing
iv.) Provide more detailed guidance regarding how to connect to hearings and
how to resolve common connection issues
i.) Use more up-to-date platforms (many petitions for Zoom or Teams rather than Skype for Business)
ii.) Use platforms compatible with both PCs and Macs
iii.) Invest in remote access areas for clients with no access to technology and
iv.) Provide standardised AV package for judges, including high quality
webcam, microphone and second screen
v.) Ensure that all judges are equipped with a reliable internet connection
vi.) Ensure all parties have more than one screen to participate in hearing and
Conduct of hearing
i.) Set ground rules at the start of the hearing
ii.) Slow the pace of the hearing and allow parties to re-start submissions
where connection is lost
iii.) Develop consistent standards of etiquette to ensure parties do not speak
over one another (and a standardised approach to muting participants)
i.) Provide a dedicated direct helpline for court users ii.) Provide contact number for a court officer
Lawyers called for more information about remote hearings: ‘In the immediate term, participants suggested that the Notice of Hearing should be adapted to include the following information:
- details about the mode of hearing
- dial in details
- timetable for the hearing
- information about how to ensure that clients can participate
- advice on the preparation of e-bundles
- whether the hearing will be conducted in private or in public.’
There should be more harmonisation of procedures: ‘A persistent concern related to the variation in quality and clarity of guidance across the regional circuits. Respondents reported that different approaches to remote hearings were being taken by different courts who were applying differing criteria for adjourning cases and different methods for conducting remote hearings. The proliferation of guidance and practice was felt to be overwhelming and confusingrespondents requested centralised consistent guidance for ease of reference.’
There was a specific need for more guidance on the preparation of e-bundles: ‘Respondents requested guidance setting out:
- Definitive criteria for adjournments/the types of cases that will and will not be heard.
- Which platforms are suitable for the conduct of remote hearings of different types.
- How to access and use the platforms and technology specified.
- How to create an effective electronic bundlemany respondents advocated for the creation of a common protocol.
- How to ensure that lay clients are able to participate and the steps that lawyers should take to support this.
- Detailed guidance on how to identify and make adjustments for vulnerable witnesses and parties, litigants in person, and those with limited access to the resources necessary to participate in a remote hearing.
- Mandatory rules on breaks for communication between counsel and to provide relief from screen time.
Better arrangements are required for lawyers to communicate with their clients during hearings – particularly during audio ones. ‘Significant multi-tasking was required to communicate with clients during remote hearings and this had presented considerable challenges for both audio and video hearings. Communication with clients had to happen privately and simultaneously as the hearing took place. Respondents described difficulties concentrating on the hearing and making submissions, whilst also dealing with emails or texts. Notifications had to be muted to avoid disrupting the hearing, which could cause messages to be missed. Sometimes separate devices were needed to view documents and messages, and it was difficult to keep an eye on everything at once. In some cases the hearing had to be paused to allow communication to happen.’
Litigants in Person
A number of respondents highlighted the way in which remote hearings exacerbated reduced availability for legal advice and, in particular, access to duty lawyer schemes. The Equality and Human Rights Commission, as non-lawyers, might be given particular important in saying that: ‘Telephone advice may also be available, but our Inquiry into civil legal aid for discrimination cases showed that many people, particularly disabled people, faced real difficulties in accessing this.’
A problem for the study is that it had only 11 responses from lay users and 4 from litigants in person. So, there was limited direct evidence but ‘A number of [professional] respondents reported that clients wished to adjourn their hearing until such time as it cold be heard in person de to the perceived impersonal natre of remote hearings. One respondent stated, “My client felt let down by the court that she should have her case dealt with by telephone. It was perceived as cheap justice and not value for money” … Some collective responses … echoed this concern, stating that “A remote hearing may lead litigants to feel robbed of their day in court. There might never be a feeling that procedures were conducted fairly and openly”’.
‘Many respondents felt that issues with technology … were magnified for litigants in person. Respondents reported issues with both technology and access to stable internet connections. One respondent commented, “This technology is not designed for litigants in person. The litigant kept interrupting and it was difficult for the judge to speak over him due to the technological barriers. There were also dogs barking throughout that made it difficult to hear. Further issues were reported around compiling and accessing e-bundles.”’
And, finally there was a damning indictment from one litigant in person: ‘I’ve never felt so stressed in my life, we had already been put in a situation with the COVID as it was I was losing my job then I had a court case via a phone call which I found humiliating… because I wasn’t really given a chance to explain, I didn’t understand the words as I’m not that clever, there as a pause here I as then told that that was my time to speak, I tried to explain, then someone else spoke and they spoke to each other, I was so confused, so I asked if they could explain in a simple way of speech, then I heard one say how I’d ‘ignored’ all correspondence, so I said I didn’t ignore anthing, to which I as told…quite sternly DO NOT INTERRUPT ME!! I felt stupid and very upset, so I listened very quietly to the end, the hearing was then closed, I got off the phone very, very distressed.’
A reasonable conclusion is that we should proceed very carefully in relation to hearings that involve litigants in person. My own view is that they should be able to choose how the case is to be heard – rather than the judge or in accordance with regulation of one kind or another. That has major implications for the savings envisaged for digitalisation, particularly in relation to tribunals.
Improved data and more research
Urgent priorities for evaluation included:
1. Research to understand the experience of non-professional users in the context of remote hearings.
2. Longitudinal research to understand the experience of all court users over time.
3. Research to robustly evaluate the impact of remote hearings on outcomes.
4. Cost-benefit analysis to explore the impact of remote hearings on the costs of accessing the justice system.
5. Research to understand the impact of remote hearings on judicial wellbeing., experience of hearings and training needs
6. Data collection and research to monitor the impact of remote hearings on open justice.
The Crunch Question: are remote hearings better or worse than physical ones?
‘Respondents felt that audio hearings were effective at facilitating participation for many types of non-contentious, non-complex hearings and routine procedural matters but ‘were more qualified in their assessment of the efficacy of video hearings’. That seems a fair summary of where we arrived. Contentious cases, complex cases and cases with self represented litigants pose problems for digital courts about which we should exert caution. And, pending further research which suggests that the doubts are unsubstantiated, we should not extend digitalisation to these types of hearing.
This is an impressive contribution to understanding the impact of remote courts both in the context of emergency response to Covid-19 and in the longer term. So, it met both its preset objectives. It has been turned around in impressive time. The important issue now becomes how much notice is taken of its findings as the court digitalisation process proceeds. Let’s hope that the care and attention shown by its author is reflected in the implementation of its recommendations and the implication of its findings.