The health of the English and Welsh court system has long been a cause for genuine concern. Over the last decade, there have been anxieties over the diminishing desirability of a judicial role, not least due to a chronic lack of governmental funding that has resulted in salaries comparatively paltry to private practice positions.
This has been amplified by the introduction of the Judicial Attitudes Survey (JAS), which has given judges the platform to publicly lay out their grievances since 2014. It produced some shocking results. The 2016 edition revealed that nearly half (47%) of High Court judges were considering leaving the judiciary, alongside 41% of Court of Appeal judges and 40% of Circuit judges. A majority of judges (76%), felt they had experienced a deterioration in their working conditions since 2014, with 43% stating that the maintenance of their building was poor.
Crucially, the 2016 report laid bare the court system’s glacial progress on embracing technology. In 2016, only 52% of judges had Wi-Fi in their courtrooms or hearing rooms, and only 42% reported any regular use of electronic bundles (e-bundles) to handle documents. Just over half of judges used the courts’ online communication system, e-Judiciary. With this scene set, the onset of a global pandemic at the beginning of 2020 and then a national lockdown was the last thing courts in this jurisdiction needed. Up and down the country, businesses and individuals were forced to adopt new working methods overnight, largely relying on technology to support remote working. Surely a finishing blow for the beleaguered court system?
Not a bit. The 2020 JAS – published in February this year – underlines the emphatic response. Now 95% of judges have access to reliable Wi-Fi in their courtrooms; the use of e-bundles rose from 42% to 55%, while usage of the e-Judiciary communication platform shot up from 55% to an incredible 99.8%. As a result of this rapid upscaling of technological capabilities, the commercial courts have received universal praise from over two dozen disputes counsel consulted for this feature, as hybrid (a mixture of virtual and in-person) and fully virtual hearings progressed at pace throughout 2020 without a hitch.
Slaughter and May partner Camilla Sanger summarises: ‘The speed at which our courts adapted was surprising. Even immediately after lockdown in March they had the technology and infrastructure in place. If you look at other jurisdictions, some courts shut down altogether and had no capability to run hearings virtually. England and Wales has come out of this very well.’ Quinn Emanuel Urquhart & Sullivan disputes partner Boris Bronfentrinker adds: ‘The commercial courts deserve massive credit for how they responded to the situation. I would be amazed if there is any kind of case backlog and in many ways the virtual hearings have been an improvement.’
This success has led to a number of obvious questions. What is the consensus among all parties, solicitors, advocates and clients? What has made such slick justice possible? To what extent will hearings go back to their pre-Covid ways?
At the touch of a button
Research published by Baker McKenzie and KPMG called ‘The Future of Disputes: Are Virtual Hearings Here To Stay?’ that was published in January, asked judges, solicitors, advocates and clients to describe just how effective virtual hearings were and, as a result, how likely they were to remain in some capacity. 70% of respondents said they had experienced a virtual hearing since the pandemic, of which only 6% reported having an unsatisfactory or ‘very unsatisfactory’ experience. There is a broad consensus (70% of respondents) that interim hearings should remain fully virtual, with 65% believing that all hearings of less than one day, not involving a jury or cross-examination, should be virtual.
This falls to only 17% of respondents for final hearings, but the verdict is clear: there is a widespread appetite to make a significant proportion of court proceedings permanently virtual.
Says Baker McKenzie disputes partner Charles Thomson: ‘Virtual hearings have played a crucial role in the administration of justice for commercial parties during the majority of 2020. Based on the results of our survey and our own experience, it appears that virtual hearings are very much here to stay for the long-run, in one form or another.’
Bronfentrinker describes this as ‘quite a revolution’, and outlines some of the obvious reasons why: ‘Judges are happy at home – all of my cases last year ran long, because judges are more willing to sit out longer than when they had to run for the train at 5pm. We got an August hearing for one case at reasonably short notice, which was previously completely unheard of.’
As well as the judges, the benefits for clients are obvious. As Stewarts partner Fiona Gilbert says: ‘I’m not at all surprised at the results of the survey. My clients have been very happy not to travel internationally for a half-day hearing! There’s definitely a feeling that clients want virtual hearings to continue into the future.’ RPC disputes partner Simon Hart adds: ‘When discussing case strategy with clients now, compared with the first few weeks of the pandemic where you might have asked: “how will covid affect court timetables?”, it’s hardly on the agenda now. You’re talking to clients in the same way you would have 18 months ago.’
‘It’s a good thing, it’s quicker and more efficient, and it means clients from outside the UK have a greater opportunity to join the hearings. The bulk of our work is international.’
Geraldine Elliott, RPC
Fellow RPC disputes partner Geraldine Elliott works with the City of London Law Society, where the question of permanent virtual hearings has been understandably high up on the agenda. She reports a willingness among both the judiciary and counsel to work out how and where virtual hearings can stay: ‘For administrative-type hearings it will stay. It’s a good thing, it’s quicker and more efficient, and it means clients from outside the UK have a greater opportunity to join the hearings. The bulk of our work is international.’
Echoing this point, Slaughter and May disputes partner Richard Swallow reports that the ability for his Australian clients to dial into a hearing rather than travel across the world was a welcome one. He adds: ‘I don’t think we’ll go back to traipsing down to court. Why do we need to go down to the High Court for an hour’s hearing?’
So what is behind such resounding success? There were two useful case studies from the past year that effectively illustrate the slickness of virtual or hybrid trials. Between October and December 2020 Maurice Turnor Gardner (MTG) represented the defendants in the Kids Company trial. Kids Company is a charitable organisation that went into insolvent liquidation in 2015, with the Official Receiver attempting to disqualify seven former directors (the defendants) from being directors of a company. MTG claims the hybrid trial ‘is likely to have been the longest civil trial since the pandemic.’
‘It’s like the difference between watching sports live and on TV. You get to feel the atmosphere when you’re there live, but on TV you get to see the close ups – the sweat on the brow of the player as he’s about to take a penalty.’
Jennifer Emms, Maurice Turnor Gardner
Partner Jennifer Emms led on the Kids Company matter for MTG, and she speaks glowingly about the process: ‘It’s like the difference between watching sports live and on TV. You get to feel the atmosphere when you’re there live, but on TV you get to see the close ups – the sweat on the brow of the player as he’s about to take a penalty.’
The virtual aspects of the trial also allowed Emms and her team to provide real-time updates to her concerned clients: ‘It allows for a more open dialogue between solicitors and clients, which is really important for them.’
The Kids Company trial is a worthy benchmark of the courts’ virtual capabilities due to it being so witness and evidence-heavy. Using Opus technology, the MTG team was able to access over 20,000 indexed documents ‘at the touch of a button’ according to Emms and her team. They describe it as ‘one of the most document-heavy cases we have ever seen, and there were 13 witnesses.’ They add: ‘You’d think it would take a while to get used to managing documents in this way but it was very easy. Once the documents are digitised it does so much of the work upfront, it would have been much slower if everything wasn’t electronic.’
Clearly this could not have been achieved without the increased availability and accessibility of e-bundle platforms, like Opus in this instance. Stephanie Barrett, head of e-discovery and legal technology EMEA at Herbert Smith Freehills (HSF), points out that ‘the functionality was always there’ with providers such as Opus, Adobe, Relativity, Zylpha, Oyez Document Production and Bundle Docs. ‘When everything started going virtual during the pandemic, all these legal technology professionals who had been vouching for e-bundles for years were just sitting there saying “Hi!”’, she quips.
Another litmus test for the hybrid trial format was the landmark Financial Conduct Authority (FCA) coronavirus business interruption test case. With HSF representing the FCA, and firms including Clyde & Co, Allen & Overy (A&O), Simmons & Simmons, Mishcon de Reya, DAC Beachcroft and DWF advising a range of insurers, this mammoth case paved the way for businesses up and down the country to exercise insurance clauses to recover funds lost during the pandemic.
A&O partner Lawson Caisley, who represented Hiscox in the matter, comments: ‘It’s a great advert for the English courts for the way it was done, in terms of flexibility and speed. Especially as this was an issue of real public importance. We went from the issuance of the claim to a judgment in just seven months – and the judgment was 274 pages of really detailed analysis.’
‘The process was astonishing. The way they got it to the Supreme Court in five months in this climate really showed what could be achieved.’
Mo Bhaskran, Stewarts
Stewarts partner Mo Bhaskran goes further: ‘The process was astonishing. The way they got it to the Supreme Court in five months in this climate really showed what could be achieved. I know some of the team and it certainly did help them speed their lockdown along quickly. It was a feat they thought was not achievable.’
This is not to say that it has all been plain sailing. Clearly, there are aspects of in-person hearings that are difficult to reproduce in a virtual format, and this has led to some teething issues. As previously stated, only 17% of respondents to Baker McKenzie’s survey would opt for a virtual format for final hearings, as these tend to prominently feature cross-examination and a jury.
Commentators have supported this sentiment. Bronfentrinker admits that it improved over time, but at first, the advocates he worked with on cross-examinations struggled to adapt: ‘They didn’t have as good a time because they’re more used to playing off each other and the judges.’ A number of counsel expressed concern that the virtual experience was also not the best training ground for junior members of the Bar to hone their skills.
A&O’s Caisley concurs on the cross-examination point: ‘With cross-examination and evidence there’s still a role for everyone being in the same room. Often people end up passing notes to the cross-examiner. Something has been lost in cross-examination. The natural flow is disrupted.’ RPC head of commercial disputes Tom Hibbert adds: ‘So much of someone’s evidence is not just what they say, it’s how they say it. It’s a fundamental part of how a judge assesses a witness. And that’s very difficult to do over video.’
Gilbert points out that while the adoption of hybrid trials has been a success in the commercial cases, others, such as divorce proceedings, will have suffered much more at the lack of in-person hearings. She also raises the salient point of ensuring proper justice is done: ‘Defendants want to clear their name, and may have concerns that their cross-examination may be impaired. Often clients say “I want my day in court”.’
Emms recognises this danger, and seeks to allay fears of defendants trying to get an easier ride through a virtual cross-examination: ‘For the most part defendants want to have their day in court. But even if not, you still have to give a good reason for why you would need to be remote. Even in Covid times it has to be a medical reason or otherwise unable to travel.’
There are also misgivings about mediations being handled virtually – reflected by 65% of Baker McKenzie survey respondents who said they were not in favour of the idea. Zietman reports generally positive experiences from virtual mediations in the last year, citing effective ‘virtual breakout rooms’, but concedes that overall ‘it wasn’t the same’. However, Elliot argues that virtual mediations could be played tactically too: ‘It won’t work for all mediations but there will be some where clients and law firms will choose to do it virtually, and it will be part of the factors you take into account with how you play a mediation.’
In other, more peripheral, difficulties, attempting to recreate courtroom decorum while at home has proven a challenge for some. Swallow notes: ‘I have a sign I put on my door at home which says “court in session, quiet please.” That is rarely respected, particularly by my dog. There’s been some dress code issues too where advocates are not wearing a suit, and have had to apologise to the judge.’
Overall, it is hard to overstate the significance of the past year in terms of the permanent revolution that has been heralded in the commercial courts. There is now a widespread consensus that a substantial proportion of civil proceedings will now be held remotely – indefinitely. There will of course be teething issues to address, but through a sheer unified willingness to adapt, the market is confident that any obstacle will be overcome.
‘The transition has been a dream. It’s absolutely comical to think that just five years later we would be conducting hearings almost entirely virtually.’
Damien Byrne Hill, Herbert Smith Freehills
As HSF’s managing partner for disputes, Damien Byrne Hill, concludes: ‘The transition has been a dream. Five or six years ago, I did a case where we needed evidence from a witness from Eastern Europe. There was a big TV wheeled into the courtroom with wires everywhere, and it took an hour to set up. The technology was so clunky that the cross examination was awful. It was so bad the judge was banging his desk in frustration. It’s absolutely comical to think that just five years later we would be conducting hearings almost entirely virtually.
‘Not only has the court system survived, it’s actually found some real benefits in virtual hearings. Now people will realise that if you can do it this way, then surely we should look to adopt it more broadly. It’s only a shame that it took a pandemic to get anyone to do anything different.’ LB