Since 23rd March 2020 we have been told to stay at home and the country has gone into lockdown. But what do you do if you have a forthcoming hearing or made an application and are awaiting a listing?
Given the nature and risk presented by the COVID-19 outbreak, the courts have given guidance on the use of remote hearings in order to keep everyone safe.
The Coronavirus Act deals with the use of video and audio technology in courts and tribunals during the outbreak. It will be an offence to record or transmit material from participation through a live link on penalty of a fine. Hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety.
The guidance sets out a list of categories of hearing that are suitable for remote hearings:
- all directions and case management hearings
- public law children: emergency protection orders; interim care orders; and issue resolution hearings
- private law children: first hearing dispute resolution appointments; dispute resolution appointments; other interim hearings; and simple short contested cases
- injunction applications where there is no evidence that is to be heard (or only limited evidence)
- financial cases
- other hearings as directed by the judge concerned
Where a case in one of the categories listed above has already been listed for a hearing at which the parties are due to attend court then, if it can be conducted remotely, it should. Where a case cannot be listed for a remote hearing any existing listing should be adjourned and the case must be listed promptly for a directions hearing, which should be conducted remotely and the primary aim of the directions hearing should be to identify how to achieve a fair and just hearing as well as minimising the degree of inter-personal contact between parties.
The guidance advises that an extensive multi-party hearing can be achieved using the Skype for Business system available on judicial laptops. In other cases it may be necessary for there to be personal attendance at court, for some or all of the hearing, by some or all of the parties.
How should urgent hearings be dealt with?
The default position should be that the hearing is conducted remotely. If it cannot then the court should endeavour to conduct a face-to-face hearing in circumstances which minimise the opportunity for infection.
What technology should be used to conduct remote hearings?
The Guidance states that remote hearings may be conducted using the following:
- by way of an email exchange between the court and the parties
- by way of telephone using conference calling facilities
- by way of the court's video-link system, if available
- the use of the Skype for Business App and HMCTS' Cloud Video Platform (Kinly Cloud) for remote video hearings is recommended
- BT MeetMe is the recommended default audio app at the moment
In addition the hearing is to be recorded or a transcript produced.
The guidance also provides that best endeavours should be used to ensure only those allowed into the court room for an oral hearing are privy to the remote hearing. Where it is simply not possible to insulate children from hearing or witnessing inappropriate matters, consideration will have to be given to adjourning the hearing.
What are the requirements for bundles?
The requirements for the filing of an e-bundle are that on the day before a remote hearing the applicant must electronically file a PDF bundle which complies with Family Procedure Rules 2010, PD 27A, and which in any event must include as a minimum:
- a case summary and chronology
- the parties' positions statements
- the previous orders that are relevant to the remote hearing
- all essential documents that the court requires to determine the issues that fall for determination at the remote hearing
- a draft order
- a completed advocates' forms together with the single address that the signed and sealed forms are to be returned to for distribution to the advocates.
It is still unclear how lawyers are to communicate with their clients during a remote hearing, to check their instructions or that they are happy to conclude the hearing.
It is unclear how privacy is maintained to include break out rooms for lawyers and their clients. There are also issues surrounding engagement of litigants in person at a hearing.
Telephone hearings can involve the parties deliberately speaking over each other, and over the judge, without repercussion, or effective means of maintaining control.
Remote hearings also necessarily depend on technology, and on the parties and lawyers having access to technology. While many people will be able to gain access to a phone or the internet for a telephone or Skype hearing, some, won't.
For now it is clear many more hearings will need to take place remotely but when we receive further specific guidance on how these hearings are to be conducted hopefully we can overcome these challenges.
The Family Team at Pinney Talfourd appreciate that this is a challenging time for us all and we hope that this article helps readers to navigate the tricky times ahead of us.
This article was written by Kiren Dhillon, Senior Associate in the Family Law team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of April 2020.