Yesterday, the Judiciary of England and Wales published the “Business and Property Courts of England and Wales Protocol Regarding Remote Hearings” in response to the COVID-19 pandemic.
The overarching message is that during this uncertain period, the objective of the Court and all users should be business as usual and that, where possible, all hearings currently listed will proceed.
The Protocol states that judges and their clerks will propose one of three solutions to the Parties: a remote communication method, a live hearing, or if neither of those are possible, only then will the case be adjourned. Parties can make representations if they disagree with the proposal but are encouraged to engage with each other, the court and to embrace technology in order to minimise disruption. Remote hearings are to take place wherever possible so as to minimise the risk of transmission. There is no suggestion in the Protocol that the Court will be reviewing hearings which are already fixed.
The Court’s approach can already be seen in practice. Yesterday, Mr Justice Teare (who is the judge in charge of the Commercial Court) urged lawyers at a hearing to work on a contingency plan for a virtual trial concerning issues of cross border enforcement relating to an arbitration award valued in excess of US $500 million, which had been due to start in the High Court on Monday 23 March 2020. Teare J, rejecting one of the defendants’ applications for a 14-day adjournment said ‘the trouble with 14 days is that other cases are due to be tried in that time. I accept that for various reasons, in particular the geographical location of expert witnesses, that this exercise will have particular challenges. But it seems to me, having regard to the need to keep the service of public resolution of disputes going, it is incumbent on the parties to seek to arrange a remote hearing if at all possible by Wednesday of next week’. He referred to recent guidance from Ian Burnett, the Lord Chief Justice of England and Wales which urged civil and family judges to step up the use of technology instead of defaulting to postponing proceedings. That guidance states ‘the default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one or all participants attending remotely’. A link to the guidance can be found on the Courts and Tribunals Judiciary website.
The message from the Courts is clear and will be welcomed by those involved in ongoing litigation or those contemplating issuing proceedings in the coming months. There will no doubt be teething problems and issues that arise along the way, but the clear message is that the Courts remain open for business. The default position will be that all legal advisors are expected to cooperate and ensure that technology solutions are used for hearings to make sure the Court can continue to serve its function in the administration of justice during the current period of extreme uncertainty.
Our Reed Smith Coronavirus team includes multidisciplinary lawyers from Asia, EME and the United States who stand ready to advise you on the issues above or others you many face related to COVID-19.