Last month, the Civil Justice Council conducted a Rapid Consultation to review the impact of COVID measures on the civil justice system. The review was led by Dr Natalie Byrom, Director of Research at The Legal Education Foundation, with the support of a wider virtual working group. I responded to the consultation both from my perspective as a law reporter, legal publisher and commentator, with ICLR (publishers of the official Law Reports) and as a member of the Transparency Project. (Another member of the Transparency Project, Dr Judith Townend, of the University of Sussex, was a member of the report’s Working Group.)
The CJC final report and recommendations, entitled Rapid Review: The Impact of COVID-19 on the Civil Justice System, by Dr Natalie Byrom, Sarah Beardon and Dr Abby Kendrick, has now been published. Even if you ignore the pressurised timeframe in which it was prepared (barely more than a fortnight), it is a very thorough and informative piece of work. Though the consultation period was short – only a couple of weeks – the level of engagement from court users was high. There were over a thousand responses to an online survey and more than a hundred people attended a remote consultation meeting conducted on Zoom by Tortoise Media. In addition, some 65 submissions (including mine) were sent to the consultation inbox.
The responses came from both organisations and individuals. Most were lawyers, but there were also responses from court reporters, observers, NGOs and lay court users, including some litigants in person. They were asked to comment on their experience of remote hearings, how satisfactory they had been in dealing with cases, how open and transparent the hearings were, how best to deal with the growing backlog of cases, including those not suited to remote hearings, and how best to gather research data on the whole process and learn from it for the future. The report notes that:
“Respondents overwhelmingly recognised the necessity of measures that have been put in place to ensure that cases continue to be heard during this period and were keen to offer practical suggestions to ameliorate the issues that have inevitably arisen as a consequence of the crisis.”
The experience of remote hearings
In relation to remote hearings, while most lawyers were satisfied with their experience (over 70% said it had been positive or very positive), the experience of lay users was more mixed. Almost half (44.7%) of all hearings experienced technical difficulties or problems with the technology, and nearly a third (30.4%) of respondents reported that no-one had provided technical support. There was evidence that lay users, particularly litigants in person and participating clients who might be considered vulnerable in one way or another, were more likely to suffer from a lack of technical support and guidance. Among the concerns expressed were that
“That the practices adopted by lawyers to communicate with their clients during hearings relied on lay parties having access to multiple devices and good standards of written comprehension, creating barriers to effective participation.
That a combination of restricted access to legal advice due to COVID-19 and difficulties with navigating unfamiliar technology alongside unfamiliar legal processes compounded pre-existing practical and emotional barriers to effective participation.”
Respondents generally found remote hearings to be more tiring to participate in than physical hearings, particularly those conducted by video. There was a recognition, too, that remote hearings are more suitable for certain types of cases than for others.
“Costs hearings were more likely to be experienced positively than interlocutory hearings, and enforcement hearings, appeals and trials were less likely to be experienced positively than interlocutory hearings. These findings suggest tentative support for reserving remote hearings for matters where the outcome is likely to be less contested, where the hearing is interlocutory in nature and for hearings where both parties are represented.
In spite of this, when asked to compare audio and video hearings to hearings in person, the majority of respondents felt that remote hearings were worse than hearings in person overall and less effective in terms of facilitating participation – a critical component of procedural justice.”
A point made by a number of respondents was that the rapid need to adapt to remote hearings had arisen in the context of an ongoing court reform programme, and that
“under-investment in facilities, technology and staff at the County Court level, and the lack of availability of bespoke platforms for video hearings had compounded the difficulties experienced by court users.”
The impact on open justice
An important aspect of the report, and one which is of particular interest to us, concerned the impact of remote hearings on open justice. The key findings are summarised as follows:
“1.24 Journalists and court reporters who responded to the survey reported that they have largely been able to attend hearings where they have wished to do so — no respondents reported that their access had been refused. Where respondents reported that they have been unable to attend hearings, this was attributed to the failure of the court to respond to requests in a timely fashion, or difficulties in identifying the correct person to contact to request attendance. Some respondents reported that the ability to attend hearings remotely had a positive impact on the number of hearings they were able to cover.
1.25 However, the findings from the consultation revealed a divide in practice and experience between the upper and lower courts. Analysis of publicly-available court lists published over one week (11 May–15 May) revealed that only a minority of County Court hearing centres (14/68) published notices with details on how to attend hearings alongside listings information. These notices varied considerably in terms of content.
1.26 In addition, respondents reported that whilst arrangements for accredited media access to court hearings are working reasonably well, access for members of the public, legal bloggers and representatives of NGOs is more problematic. Respondents raised concerns that media access was being treated as synonymous with or equivalent to open justice: “A major problem appears to be an assumption, enshrined in para 3 of CPR PD51Y, that providing access for media coverage is somehow equivalent to open justice. Para 3 states: ‘Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.’ For a number of reasons that is simply not the case.” (Individual respondent, law reporter). Concerns were also raised by respondents regarding the impact of COVID-19 arrangements on the number of hearings being held in private, and the absence of good data to monitor this.
1.27 One issue raised by all respondents related to the difficulties involved in accessing documents relating to cases that were considered vital to facilitate accurate reporting. Existing deficiencies in the current arrangements for accessing primary legal information (listings, judgments, transcripts and case documents where authorised by the court) were reported to be amplified by the current crisis.”
Impact on legal system
The report also considered the impact of the pandemic measures on the administration of justice more generally, including the effect on the legal profession and the growing backlog of cases. It noted that:
“The high rate of adjournments brought about by the pandemic was raised repeatedly as a concern by professional court users. Responses from the Bar provided data to illustrate the impact of adjournments on the profession, with responses from several Circuit Leaders characterising the threat posed by the loss of income engendered by the crisis as “existential”. The impact of adjournments was felt to be borne disproportionately by members of the junior bar. Other respondents highlighted the impact of home working arrangements on professionals with caring responsibilities, – stating that the impact on women and carers should be monitored.”
Looking to the future, the report highlighted the need to capture more data about the operation of the civil justice system, and to conduct a more thorough evaluation of remote hearings. While lawyers from big firms appeared to regard the growth of remote hearings quite positively, particularly for those commercial cases where the resources of the parties would justify the technical support needed to make them go well, for other types of case respondents recommended the use of remote hearings mainly in preliminary matters, interlocutory hearings and trials without evidence, and in circumstances where both sides were represented. There was also a recognition that “remote hearings may not necessarily be cheaper to participate in, which may be counter to assumptions about relative costs being lower”.
This report, which follows that of the Nuffield Family Justice Observatory (NFJO) in respect of the Family Court under Covid-19 and a working paper for the Public Law Project in respect of judicial review proceedings in the Administrative Court, will be extremely useful in helping the courts and judiciary to understand how to develop and refine the use of remote hearings for those cases where they should continue to be used, both while the pandemic measures continue to be necessary and in the post-Covid world. While the willingness of the legal professions, judiciary and court staff to engage with the brave new systems is certainly praiseworthy, there is no justification for complacency. We still have a lot to learn.
The report is thorough, but recognises its own limitations:
“While every effort was made to adopt objective, robust methods, the speed of the review, participant recruitment method and absence of data to enable the construction of a sample frame means that findings should not be generalised to the wider population of court users.”
The key recommendation, it seems to me, is that there must be a concerted push for more and better data to be collected, both for the purposes of research and for the sake of transparency. In this regard I can do no better than quote Dr Byrom’s own comment on the report:
“The Civil Justice Council’s commitment to use the report as basis for informing further research and review is very welcome. The report highlights systemic deficiencies in the information that is currently available on the operation of the civil justice system. The findings underscore the vital need to invest in robust systems for capturing data in order to review the operation of the civil justice system and build the evidence base for effective practice. Improving the data that is collected is vital to make the voices of litigants in person and lay users of the justice system heard.”
A version of this post first appeared on the Transparency Project blog.