By Richard Crump

Law360, London (March 19, 2020, 9:48 PM GMT ) Courts across England and Wales will be using technology to enable participants to attend legal hearings remotely in an unprecedented move that will test the capacity of the judiciary's digital tools to ensure justice continues in the face of the coronavirus pandemic.

Ian Burnett, the lord chief justice of England and Wales, warned in a message to family and civil court judges that "access to justice will become a mirage" if there are no hearings. The lord chief justice instructed judges should prepare for hearings to be conducted with one or even all participants attending remotely.

"The effective administration of justice is fundamental but the way it is delivered has to be consistent with the health advice given in other sectors," said Suzanne Rab, barrister at Serle Court Chambers. "The safety of all concerned must be paramount at this uncertain time. That has to be the starting point."

In his message to judges, Justice Burnett said rules in both civil and family courts are flexible enough to enable telephone and video hearings of almost everything, adding that the courts service is working urgently on expanding the availability of technology.

The judge said earlier in the week that there was an "urgent need" to increase the use of telephone and video technology to hold hearings remotely and said that emergency legislation is being drafted that should boost the ability of the criminal courts to use that technology in a wider range of hearings.

In the meantime, phones, some video facilities and Skype are available on the court intranet. But some lawyers are concerned about the capacity of video links to meet increased demand.

"Up until now, the courts have already been using video links and such like in appropriate circumstances which don't necessitate a physical hearing," Rab said. "But there are concerns about the capacity of video links to meet increased demands, especially if they are being used for evidence."

There is also an issue about "ensuring equality of arms between parties who are represented at a hearing in person and those represented remotely, and consideration needs to be given as to whether that is as effective," she added.

According to Justice Burnett, most applications for permissions to appeal, including oral reconsiderations, are likely to be suitable for telephone hearings, except for litigants who are representing themselves. Final appeals could also be suitable for hearing by telephone.

In a legal first, Judge Nicholas Mostyn decided on Wednesday that a three-day Court of Protection trial would be conducted over Skype to enable the case — which concerned an elderly man who suffered a stroke — to proceed without risking the health of the participants.

And on Thursday, a London judge urged lawyers representing Kazakhstan, BNY Mellon and two Moldovan investors to work on a contingency plan for a virtual trial over $530 million held by the bank in the event that court access is restricted due to the coronavirus.

"It is unsustainable to have business as usual in its current form, but there must be provision for the court to continue doing business," said Neil Williams, legal director at Rahman Ravelli. "There must be a reality of what can be achieved in the climate we are facing."

Moving towards a more digitized court has long been considered. In a 2016 report, senior judge Lord Justice Michael Briggs evaluated the potential for an online court, noting that the antiquated and inefficient information technology systems in use required radical improvement.

At the same time, he found that advances in the sophistication of digital services made an online court designed for litigants a practicable solution for the first time.

However, the project never received significant traction at the time, said Alison Padfield QC of 4 New Square.

"It is very interesting, but also worrying, that we are suddenly going into a live experiment where there are concerns about the capacity of the courts and about fairness and open justice," she said.

The move follows the U.K. justice department's controversial decision to force lawyers to attend court despite the government's decision to close schools as of Friday and advising citizens to work from home and avoid socializing to stem the spread of COVID-19 — especially in London.

HM Courts and Tribunals Services department, an executive agency of the Ministry of Justice, said that professionals, witnesses, jurors and defendants are free to enter the buildings unless they have symptoms of the virus and need to follow the government's guidance on self-isolation.

That decision was roundly condemned by lawyers, citing serious concerns about standards of hygiene and facilities within court buildings, such as lack of soap, hand sanitizer and running water as well as the cleaning of conference rooms and courtrooms.

Amanda Pinto QC, chair of the Bar Council, which represents counsel in England and Wales, called for a suspension of all in-person hearings, save in exceptional circumstances where a video link or phone hearing cannot accommodate the interests of justice.

"All proceedings conducted in person ... are inconsistent with the government's current health advice," Pinto said. "Already members of the public are understandably reluctant to appear, for example, as witnesses."

The coronavirus could also have a knock-on effect for the service of civil claims, particularly those with short limitation periods — such as employment tribunals, which only have a three-month limit — or those claims where the limitation period is due to expire soon.

"There is going to come a point where it is going to be difficult to issue claim forms in civil claims. The Ministry of Justice must plan now to extend timescales," said Padfield. "Limitation periods and procedural time limits in civil cases should be extended automatically during this period where the court finds it difficult to do any sort of business."

Meanwhile, although courts in Scotland and Northern Ireland have put a stop to new jury trials, England and Wales have so far refused to do the same.

Instead, the English courts have limited new jury trials in the crown courts to those expected to take three days or less, something officials have estimated will still let the bulk of jury trials go forward. Any longer criminal trials that had been slated to begin before the end of April will be postponed, while current trials should continue in the hopes of being wrapped up.

The Serious Fraud Office, for example, confirmed that from Wednesday the bribery trial of former Unaoil executives Ziad Akle, Stephen Whiteley and ex-SBM Offshore employee Paul Bond on bribery charges will be postponed until March 31.

"The government has said that mass congregations of people are to be avoided. A jury trial simply can't go ahead," said Williams. "Twelve people locked in a room. It is a petri dish."

--Additional reporting by Paige Long and Joanne Faulkner. Editing by Jay Jackson Jr. 

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