MESSAGE FOR CIRCUIT AND DISTRICT JUDGES FROM THE LORD CHIEF JUSTICE, MASTER OF THE ROLLS AND PRESIDENT OF THE FAMILY DIVISION

The Lord Chief Justice, Master of the Rolls and President of the Family Division have sent out a message to civil and family judges.  This has been made generally available.  I provide here highlights of the message, particularly relating to civil practitioners.  The message makes the point that remote hearings can be far more tiring for all those involved, including the judge. Listing has to be adjusted accordingly. (The full message is available here).

 

THE MESSAGE

The message starts with stating that much has been learned about remote working over the past three weeks.

“Much of what has been learned is positive. There have been many reports of technically effective processes and we suspect that we have all surprised ourselves by the progress that has been made in such a short time. From next week the bespoke HMCTS video hearing facility will have a greatly increased capacity; this system is expected to offer better quality all round than Skype and so should enhance yet further our ability to conduct remote hearings.
The overarching criterion is that whatever mechanism is used to conduct a hearing must be in the interests of justice, that issue being assessed by reference to the unusual circumstances that prevail and the unhappy alternative if a hearing is adjourned. Every hearing we conduct in whatever form must provide a fair hearing.
Alongside these positive reports, there are reports of negative experiences either about the hearing itself or its fairness. Last week, there were reports that using technology to conduct hearings was unusually tiring, particularly those which were relatively long. Over the course of the last few days we have been informed of a growing problem of participants not respecting the reality that although they were not physically present in a court room, they were taking part in court proceedings with all the constraints on behaviour that implies. There have been instances of judges being shouted at by litigants. There have reports of problems with the availability of papers.
It is clear to us that we have reached a stage when it is right to take stock of our collective experience of remote working to date and review whether any changes should be made. We are grateful to those many of you who have written to us and to the SPJ, and especially to the Associations who are urgently gathering descriptions of your experiences.
We would encourage all judges and leadership judges to recognise that doing as much as possible remotely does not mean, and cannot mean, trying to do everything remotely. It is important that the listing of cases, which is a matter for judges, takes account of the reality that long hours in front of a screen or on the phone concentrating hard are more tiring than sitting in a court room with all the participants present. That is an experience reported by teachers who gave remote lessons at the end of the term. No judge should be expected to endure abuse on the phone or laptop. That itself may show that some types of cases have been attempted which are not suitable for hearing in some ways remotely…
In Civil Cases in particular:
i. Listing remains a matter for the judge. He or she should not feel under any pressure to list a certain number of remote hearings every day. Video hearings have proved more tiring than ordinary hearings, so lists of about half their usual length may well be appropriate.
j. The best guide to what should be dealt with over the coming weeks is set out in the Civil Listing Priorities, although of course there will always be some cases outside those categories which are urgent and will need to be heard as a matter of urgency.
k. Particularly careful consideration will need to be given to any remote hearings involving litigants in person, or parties (or witnesses) for whom English is not their first language. In Civil Cases in particular:
We have heard that some judges have been told that they must undertake their full list, as would ordinarily be the case, using phone, video or the internet. We reiterate that this should not be the case. Much can be done, more perhaps if the judge is in a court building. Across all jurisdictions, around 40% of all hearings have continued, some in the traditional way, others using phone, video or the internet. It is easier to continue in this way with some types of court and tribunal cases than others. The overwhelming majority of those have not been long hearings involving difficult evidence or high emotion, and for obvious reasons.
There are unwelcome consequences of postponing hearings of any sort at the moment, and perhaps particularly in the family jurisdiction. It will, nonetheless, be inevitable that many will have to be. As we have said before, the judiciary has risen to the challenge of keeping the machinery of justice functioning across all jurisdictions in a remarkable way. But as the LCJ said at the outset, it is not business as usual (a point also now made by HMCTS) and realistically it cannot be until the emergency subsides.”