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The Future of Litigation – Remote Court Hearings?

 

A joint statement was released on 31st March 2020 by Chief Justice Frank Clarke and the Presidents of each of the Court jurisdictions which stated that “a considerable amount of work has been done” on facilitating remote court hearings which were set to be piloted on 20th April 2020, in order to guarantee the continuation of administration of justice during the coronavirus restrictions, particularly with the pandemic thought to be a long road ahead. There have been significant updates and developments since then.

On 20th April 2020, the Irish Courts sat with all parties present via remote video technology. On this date both the Supreme Court and Court of Appeal heard matters on individual cases with judges, practitioners and parties appearing over video technology from remote locations. Each case was displayed in mainly empty court rooms on video screens for any members of the media present. At this point, it was emphasised that there will be steps made eventually for press to gain access to these cases remotely through secure and password protected links which would facilitate the press continuing to be the eyes and ears of the public.

Subsequent to this, the Courts Service released a statement on the 8th May 2020 stating that “Courts will extend use of virtual remote court hearings, and organise more physical hearings in the coming weeks.” Court rooms will be laid out in a manner to respect social distancing and cases themselves will be listed at staggered time slots. The implementation of these virtual courtrooms will facilitate an increased number of cases to be heard in the coming weeks and will deal with the necessity of decreasing the substantial backlog of cases.

The Chief Justice stated that these measures in relation to virtual remote court hearings and social distancing hearings may well continue to be in play to until the second half of 2021. He further stated that “important as these measures are, they will not allow a throughput of cases on the scale which operated prior to restrictions being put in place. It remains unrealistic to anticipate that all courtrooms in all courthouses will be able to operate at or near the level which existed prior to the crisis. Even if additional suitable venues can be identified there will still be significant limitations. It is for that reason that the use of remote hearings in those cases for which they are suitable, must remain an important part of the medium-term solution”.

 

Angela Denning, CEO of the Courts Service spoke about the practicalities of the implementation of measures to ensure every courtroom allows access to justice while also maintaining social distancing and safety. Ms. Denning stated that “the Courts Service has fitted out a prototype courtroom in Naas. … Screens will be provided for Judges, staff and witnesses, along with floor marking, two-meter distancing signage etc.” Ms. Denning announced that the Courts Service have created a new position and a full time Health and Service Officer has been appointed who will be responsible for reviewing any proposed measures to ensure that the Courts Service are compliant with all legislation and public health advices in relation to COVID19.

How can parties gain access to these virtual courtrooms and is there an ease in accessibility?

From a practical standpoint, the technology being used by the Courts Service to enable e-courtrooms is widely adaptable for anyone who will need to be involved in cases. A Virtual Meeting Room (VMR) is set up for the purpose of each individual court sitting. VMR uses a video streaming application called PEXIP. Parties who need to be involved in a particular case can join a PEXIP VMR session from other well-known and easily accessible video streaming services such as Skype and Zoom without the requirement that all parties  must use the same application. This will facilitate the ease of accessibility for all necessary parties to have access to these e-courtrooms.

Remote access and its downfalls?

While remote hearings are expected to be rolled out over the coming weeks, there are concerns with regards to virtual courtrooms. Mr. Justice Barniville of the High Court who has presided over a number of commercial court hearings held remotely, has told the Irish Times that these remote hearings were “a way of tiding us over until we get back to physical hearings”. This poses a question as to whether remote access to virtual courtrooms is a sufficient replacement for physical court hearings going forward?

Mr. Justice Barniville raised concerns in relation to remote access in that “you can’t get a good picture of the other person, the opponent, while the other side is speaking, or of the clients, or the solicitors, because they are relegated to a little box at the bottom of the screen. Quite often you want to see how a submission is going down, what the reaction of the other side is to it. So you miss all of those.” It could be further argued that the lack of a face to face experience in Court could also diminish the seriousness of offence that has been alleged to be committed. It would cause us to wonder whether people will treat a court hearing with the same degree of seriousness when they do not have to physically come to court and appear before a judge.

What developments are expected from our Courts system in the coming weeks, remote access or otherwise to ensure continued administration of justice in Ireland during COVID19?

The 18th May 2020 will be the start of the implementation of several number of practices to ensure the administration of justice within our Courts system:

  • The President of the High Court, Mr. Justice Peter Kelly has said that there will be an expansion of both the type and number of cases to be heard from Monday, 18th May 2020;
  • The High Court will continue to sit throughout the Whit recess/vacation;
  • Three courts will be available for remote virtual hearings daily;
  • Seven additional courts in the Four Courts complex will be available for physical distancing hearings daily;
  • Until further notice it will not be possible to hear cases which require oral testimony;
  • The Criminal Courts of Justice will facilitate the virtual remote hearings of criminal appeals;
  • Certain Jury Trials are to resume in many cases in the Circuit Court in September 2020;
  • District Court Appeals will proceed where Defendants are in custody;
  • Family Law cases will be given a hearing date as soon as possible and may be dealt with remotely if possible;
  • Civil cases in the Circuit Court which were adjourned since March 2020 will be given a hearing date as soon as possible; and
  • District Courts throughout the country will continue to hear urgent cases and these urgent cases now include areas of criminal, family and childcare law.

Without doubt COVID-19 has brought forward the necessity of technology in the future of administration of law in Ireland, particularly in the use of e-courtrooms. However, having regard to the Courts Service Strategic Plan 2017-2020 in Ireland, plans were already being initiated to increase the role of technology in our Courts system before COVID-19.

There is no doubt though that the challenges faced in progressing litigation in past weeks and in the coming weeks due to the COVID-19 restrictions, and the flexibility illustrated by the legal professionals as a whole and similarly the Courts Service in responding to same, provides a positive argument that our jurisdiction is ready to embrace technology regardless of the obstacles. Real change in the future of Irish Court business may only be beginning with e-courtrooms but there will be a significant development for the future of our legal system.

We are here to help if anyone has any queries about this article or would like to discuss its impact on their litigation proceedings. Please contact the author of this article or alternatively a member of our team at Kane Tuohy for any queries.

 

AUTHOR: Tanya Davis, Trainee Solicitor

This Briefing Note is not intended as legal advice. For specific queries, please liaise with your usual contact in Kane Tuohy or with Hugh Kane (hkane@kanetuohy.ie / 087-9726164)