The Law Society has recently issued a response to the Civil Justice Council’s rapid consultation on the impact of COVID-19 measures on the Civil Justice System (1). Their take-home message is that this “new normal is not accepted as a permanent way of accessing and upholding justice in the future” and it is “crucial that courts are able to re-open once it is safe to do so” (2). They have particular concerns surrounding the high barriers to entry (3), the impact on vulnerable parties and witnesses (4), and the inability of litigants in person to participate fully in remote hearings (5).
From an environmental and sustainability perspective, remote hearings in private disputes seem to represent an inherently positive step towards reducing the “legal carbon footprint”. At face value, it prevents swathes of lawyers from travelling, often internationally, to court. Less plane trips, train rides and car journeys are something that we at LSA are constantly pushing for. However, in order to be truly sustainable, it must have the capacity to deliver effective and open justice. It is unlikely that a permanent Zoom-court can fulfil this function.
As the Law Society notes, certain cases are more suited to remote hearings than others, the implication being that they could continue after the pandemic. Procedural, direction and case management hearings are cited as examples of this (6). It is likely that with a bit of adjustment, and technological support for those who need it, this could be a sensible way to reduce unnecessary travel and ensure that barristers, solicitors and laymen alike, are using their time wisely, However, this forms a relatively small part of the civil justice system, a “one-size-fits-all” approach would be inappropriate.
The problems that the Law Society outlined with virtual hearings are particularly acute in the family justice system. Indeed, Sir Andrew McFarlane, the President of the Family High Court has recently welcomed the Nuffield Report (7) which outlines the “significant concerns” and the “worrying descriptions of the way some cases have been conducted to date” (8). Not only this, but the report outlines the negative impact on practitioner’s health and well-being. The impact of this should not be underestimated: a demotivated, isolated workforce is not a sustainable situation.
Problems are not just unique to the family justice system. Although Lord Burnett of Maldon suggested that there would be “no going back to the pre-corona days”, suggesting that practitioners and judges would demand greater use of remote hearings (9), his enthusiasm does not seem to be wholly shared by those on the ground (10).
Only time will tell whether a technological revolution in the courts will be forthcoming. In order to be truly sustainable, however, it must work for everyone, users and practitioners alike.
Eliza Bond, LSA Intern
(1) The Law Society’s response to the Civil Justice Council’s rapid consultation on the impact of COVID-19 measures on the civil justice system May 2020
(2) Ibid at page 2.
(3) Ibid at page 5-6.
(4) Ibid at page 4.
(5) Ibid at page 8.
(6) Ibid at page 2.
(7) Remote hearings in the family justice system: a rapid consultation
(8) Ibid at page 1.