James Farmer

Legal Commentary

Court Hearings and Covid-19 - Part Two

Wednesday, April 29, 2020
Following communications from some lawyers after yesterday’s posting, I feel it may be necessary to summarise my overall view of what should be happening in the courts in relation to trials and other substantive hearings (e.g. appeal hearings) as a result of Covid-19 and, more particularly, now that we are in Alert Level 3. It is of course only the view of one barrister but here it is:

(1) Virtual hearings conducted remotely through individual devices operated by each participant (including the litigants as well as counsel, the Judge or Judges and witnesses if any) are not an acceptable form of administering Justice. I do not agree that the parties should have the option of agreeing to virtual hearings, for the reasons I outlined in yesterday’s blog.

(2) Given the safeguards proposed for the operation of the courts (in terms of sanitising, 2 metre distancing requirements, continuing courtroom cleaning), in person oral hearings of all substantive matters should be held.

(3) If that position is not accepted or if, in any specific case, there are reasons why an in person oral hearing cannot be held, the case should be adjourned until such time as such a hearing can be held.

The High Court Protocol issued on 23 April 2020 states that where counsel or parties or witnesses are required to attend court, the hearings will be held in larger courtrooms to provide physical distancing. The only impediment that I see to this is that this will make it more difficult for counsel on the same side to communicate with one another. As senior counsel, I am tempted to say that may be a blessing. However, texting is one form of remote communication that is probably adequate to deal with that situation or, if it is a matter of real importance and urgency that can’t wait until the next break, a request for a 5 minute adjournment could be made.

While we are in the mood for some minor reforms to courtroom conduct, could I suggest that at least while Covid-19 restrictions persist, counsel be permitted to take coffee into the courtroom (something for which I was roundly scolded for during the input methodologies hearing in the Wellington High Court by the Registrar, to the great amusement of the large number of lawyers present that day).

I should acknowledge that I believe that the Judges are committed to business as usual if that can be conducted safely. With businesses re-opening (with observance of the social distancing and other requirements), that should surely be possible now in virtually all cases.

Jim Farmer

29 April 2020

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