Covid-19 – Remote Hearings – A new legal dawn!

Covid-19 – Remote Hearings – A new legal dawn!

This note is part of a series that the lawyers of Reddy Charlton will issue on the major legal, personal and business issues that will confront us all during the Covid-19 crisis.

Reddy Charlton were among a select number of firms last week to be pioneers of a new legal dawn – to be part of a remote hearings list for the first time in Irish legal history.  This was conducted on 21 April 2020.

In these most uncertain times the challenges faced by all of society are requiring innovative solutions. Litigation is no different.  While the courts remain closed, only open to the most urgent of applications such as Habeas Corpus or interim injunctions, it is neither practical nor constitutional for access to justice to remain closed indefinitely.

In response, through a collaborative effort by the Judiciary, the Courts Service, the Bar Council and the Law Society, the Irish Legal System took a leap into the modern era and trialled remote hearings for the Supreme Court and the Court of Appeal.

Detailed guidance was provided by the office of the Court of Appeal in advance of the remote call over hearing as to the practicalities and logistics of what would be involved.

In short, it was quite straightforward.  A conference call app has to be downloaded, called Pexip.  The court list was assigned a time in the normal way and practitioners arrive in the virtual court at the allotted time by dialling in on the app.

There were nearly 100 people in this virtual court so there was the potential for teething problems.  The main ones that arose were people failing to mute their microphones and turn off their video when not addressing the court.  There was a lot of background noise and interference and that did make it difficult to hear practitioners and the judge initially.  There was also a delay sometimes, depending on internet speeds, and so some practitioners talking over each other was happening which was difficult for the court to manage.

One tip above all else, would be to picture yourself as being in court normally.  Until addressed by the court, you are neither seen nor heard by the judges.  The same applies in remote hearings.  Turn off your video and mute your microphone until your case is called.

Ultimately, the entire list was successfully called over and the wheels of justice can now begin to turn again.

Positives, Challenges, Observations

• Albeit on a limited, phased basis, with no certainty as to when public gatherings of any description will be allowed again, remote hearings provide access to the courts in these times when physical access is not possible.
• The remote hearings will lend themselves very well to affidavit based cases.
• Trials that require oral hearing will be more difficult to run remotely.
• The potential to cross examine and to object will be very limited.
• Possible challenges to the constitutionality of the remote hearings may arise as to ‘justice must be heard in public’ – the public at large cannot readily dial into the call, as they would be able to walk into a court.
• Hearings are much slower – a natural by-product of the limitations of the technology.
• Practitioners or lay litigants who are not technically minded may be restricted in their access to the courts remotely.

As Covid 19 restrictions are universal throughout the world, we can look to other jurisdictions for guidance.  The courts in the United Kingdom have recently conducted a number of cases remotely.  The case of National Bank of Kazakhstan v The Bank of New York Mellon was successfully held.  Some issues that arose were witnesses appearing early on the call and the difficulties of policing whether a witness has notes in front of them or is being coached in some form.  These are some of the pitfalls this writer alluded to above with oral testimony at remote hearings.

Other practical tips that arose from that case were the ability of the solicitors to instruct his counsel during the hearing.  This challenge was surmounted through Whatapp messages instead of the traditional written note being passed up or muting ones audio and calling the barrister directly.

Conclusion

While clearly the remote hearings are imperfect, in these unprecedented times, novel solutions have to be found to conduct life as near normal as possible and this has been achieved by remote hearings.  Indeed, there had been some talk in recent times of such remote hearings being rolled out in the future with the potential for savings as to costs and efficiency of time.  The silver lining to this pandemic is that it has forced the Irish Legal system into the future and this can have positive effects when normality returns to court life.

How can Reddy Charlton help?

During this Covid 19 crisis, Reddy Charlton Solicitors are eager to support, encourage and guide your business.  If you have any queries or seek further information on this topic, please contact Patrick Kevans at pkevans@reddycharlton.ie



Patrick Kevans
Author: Patrick Kevans