England did not launch an e-filing pilot program until late 2015. And it was only in 2019 that the system became mandatory for lawyers in the Queen's Bench Division and was rolled out more broadly to the Court of Appeal and business courts outside London. At the time, the lord chief justice cautioned that the country had "much ground to make up."
But now, as the first anniversary of the national pandemic lockdown looms, lawyers and judges marvel at how quickly the country was able to make virtual proceedings the status quo across the civil courts. Many practitioners now predict some of the drastic changes in technology are here to stay.
"It is often said the lawyers and judges are conservative and resist technological change," Richard Susskind, who advises HMCTS on IT matters, said. "Well, when the chips were down, great numbers of judges, barristers, solicitors and court officials showed great adaptability in using entirely new systems, in generating and adopting new procedures and in changing working practices."
The Courts and Tribunals Service, the government agency known as HMCTS that is responsible for administering courts and tribunals in England and Wales, said in January that, although most systems are still running in "crisis mode," some focus has shifted to recovery plans for when COVID-19 restrictions start to lift.
The agency has not specified which changes may stick around. But lawyers foresee a world in which remote hearings will at least remain an option.
Susskind, who serves as president of an educational charity, the Society for Computers and Law, said that the Courts and Tribunals Service and the judiciary responded well to the changes that had to be made early in the pandemic.
"This is not to suggest there were no glitches or problems, but under very difficult conditions I believe the court system of England and Wales has responded very well," he said.
Measures expanding the use of video technology and telephones in civil and criminal proceedings were included in emergency laws passed in the U.K. in March 2020. Judges were also warned not to postpone civil hearings and to embrace remote hearings.
In data provided to Law360, HMCTS estimates that 22,000 remote hearings now take place each month. And 90% of courts and tribunals hearings are using remote technology and specialized platforms for video hearings.
"There's no question that these judges take their role and their sense of public duty extremely seriously, which means that they're not prepared to settle for second best," Richard Samuel, a barrister at 3 Hare Court, said. "They also have their eye on Britain being an international center of dispute resolution, and so in a sense it's played to their strengths."
The rapid rise in the use of technology in courts has also helped a wide-ranging program launched in 2016 to reform the justice system and bring it into the digital age.
The goal of the £1 billion ($1.4 billion) program was simple: modernize the England's antiquated and primarily paper-based systems and bring technology to the courts. It also sought to simplify procedures, cut the amount of paperwork involved in proceedings and bring more services such as divorce and civil money claims online.
In the years since its launch, the program had been beset by delays as the government's ambitious timeframe collided with huge funding gaps.
But the urgency created by the pandemic last March accelerated the rollout of the program — even if it did not happen in the way the judiciary initially imagined.
In the early months of the coronavirus outbreak, courts holding remote hearings often had to set time aside for the parties to argue over the merits of the technology available, test the microphones and video capability of lawyers arguing the case and sort out the logistics of allowing members of the public access to the hearings.
Since then, the process has become much more structured, even if occasional lapses in connection are now accepted as routine.
For civil cases, hearings over Microsoft Teams are the norm, with most participants dialing in from their homes. Increasingly, judges and lawyers call in from their chambers or from meeting rooms at law firms that have been set up with social distancing precautions.
Initially, the legal industry was unsure how the lockdown would affect the civil courts. Predictions included a wave of out-of-court settlements as participants reprioritized balance sheets and a surge in insolvencies and contractual renegotiations. Lawyers were quick to provide guidance on force majeure and material adverse change clauses that could prompt litigation further down the line.
As it turned out, although battles over restructurings and force majeure contracts have emerged, the civil courts haven't seen a major change in activity.
For example, on a Monday in March 2019, 62 cases were listed at London's Business and Property Courts. Forty of those were heard in the Insolvency and Companies Court List, including companies applications and bankruptcy and winding-up petitions.
On the first Monday in March of 2021, the numbers were not much lower. On March 1, the business courts featured 55 cases on its daily listings; 32 of those disputes were in the Insolvency and Companies Court list.
Mark Brealey QC of Monckton Chambers said that, as an advocate, having remote hearings avoids the inconvenience of having to head to court. But the main disadvantage of remote hearings is that he can't really communicate with his client, solicitors and co-counsel as well as he would face to face.
"It has its pros and cons, but it has worked. I don't think anyone can say it hasn't worked," he said.
Connection problems remain when there are too many participants calling into a hearing. That prompted the Competition Appeal Tribunal to opt for a system in which only advocates join by Teams and the proceedings are live-streamed to the public through a link on the tribunal's website. The U.K. Supreme Court has long taken a similar approach.
But Brealey said the pandemic has clearly thrust lawyers into a "new generation" of court proceedings. And even when restrictions are lifted and all hearings will return to being held in person, he predicts that participant will still be given the option of remote hearings.
"We won't get rid of that technology now — there's no doubt about that, it's here to stay. And I don't see why urgent applications or some case management conferences cannot be done remotely," Brealey said. "It saves a lot of time and a lot of costs."
Samuel of 3 Hare Court also expressed skepticism that the civil courts would return to how they operated before the health crisis. He said that his productivity has increased as a result of the lockdown — he no longer commutes and is using technology more effectively than he did in the past.
"I recently cross-examined 30 witnesses over a week in an arbitration online and there was no issue there," he said. "Now people know it can be done, it's going to be much more difficult to resist and go back to the old way of doing things."
Keeping the option for remote hearings could allow the courts to hear more cases and bring in more revenue, rather than being restricted by the number of courtrooms available, Samuel said.
There is no doubt that the court's response to the pandemic over the past year has boosted confidence in remote hearings, particularly for procedural hearings, said Jamie Hamblen, a barrister at Quadrant Chambers.
"I am interested to see the extent to which remote hearings are used once restrictions are lifted," Hamblen said. "I am not expecting any grand reforms, nor do I think they are required, but there may well be an increased willingness for the courts to test and adopt new technologies in future."
HMCTS has already invested heavily in digital infrastructure during the pandemic. The agency now has 3,200 virtual courtrooms across England and Wales using its cloud video platform system, which provides a secure connection to the existing justice network.
More work needs to be done to determine what kinds of cases are best suited to face-to-face, audio, video or paper hearings, Susskind said. Anecdotally, interim and procedural hearings, as well as small money claims and many commercial disputes, seem to be well suited to remote handling. But more data and detailed reviews on the practical implications are needed, he said.
Susskind's organization runs a website tracking how 145 countries have kept their justice system running during the pandemic. The project, which is supported by HMCTS, allows judges, lawyers and court officials to share their experiences of remote hearings.
"There is much more to be learned," Susskind said. "We must gather as much data as we can about what has gone well, from the court users' as well as the legal world's perspective, and what types of hearing are less well suited."
--Editing by Ed Harris.
For a reprint of this article, please contact reprints@law360.com.
