Our courts have an unenviable task in dealing with this in a way that enables them to continue to meet the needs of litigants and dispense Justice but without compromising the traditional high standards of Justice that we rightly expect of them.
In that context, it is worth saying at once that, despite protestations by the participants to the contrary, efficiency and expedition are not hallmarks of our judicial system. I say that, with great respect for Judges, Court officials and lawyers. It is actually not their fault.
We have a basically inefficient and slow system of decision-making because a very long time ago we adopted (or rather inherited) an adversary system of open Justice. We chose to put fairness and Justice above efficiency. There would be very few who would have it differently.
The adversary nature of the process allows each party, within certain rules, to present the best case he or she can and in that respect to lead the evidence and take the points, state the issues and make the submissions that each wants to make – both positive, as to a party’s own case, and negative as to the opposing party’s case, a key feature of which is testing that case through cross-examination, reply evidence and counter-submissions.
The transparency of the system requires hearings to be held in open court with all the participants present – the Judge, the parties and their counsel and solicitors, and the witnesses as they each give their evidence and are cross-examined. Thus is Justice not only done but is seen to be done.
The perception of Justice, exemplified by the right of a litigant to his or her “day in Court”, I would suggest, is even more important than a just decision. If litigants think that they have not had a fair hearing it will be the reputation of the courts that will suffer and the ideal and concept of Justice that will be undermined. Former High Court Justice, Andrew McGechan, used to say that the most important person in the courtroom was the litigant who lost the case. It was that litigant’s perception of whether he or she had had a fair and thorough hearing, notwithstanding an adverse result, that was important in maintaining respect for the court.
The twin principles of Natural Justice – nemo judex in sua causa (the requirement of a disinterested, impartial adjudicator) and audi alteram partem (the right to a fair hearing and the opportunity to present one’s case fully) – are therefore the pillars that provide the foundation of our system of Justice. While I think that appeals to The Rule of Law tend to be overdone, I am quite happy to invoke it here and to say that it is the judicial process that is the mechanism for its enforcement.
With those grand words, let us turn to the problems currently being caused by Covid-19 and test them against some of the thinking that seems to be developing as to how to continue to dispense Justice in circumstances where protecting public health is a prime consideration.
The discussion that needs to be had is not about continuing to progress interlocutory timetables and dealing with relatively straightforward minor interlocutory disputes. For a long time now, filing memoranda of counsel (either joint or opposing), fixing timetables (usually by consent) and discovery matters have been dealt with by teleconferencing and the issue of Minutes (with directions), often by an assigned Judge. That is continuing under the present lockdown and will no doubt continue as we progressively go through various Alert levels on our long trek to normality and then beyond that.
No. The discussion that is critical is how we deal with substantive trials and hearings, most of which will take more than a day and commonly will take weeks and even months.
Requiring similar discussion is the hearing of substantive appeals in the Court of Appeal and Supreme Court – by definition matters of great importance and very often hearings that take 2, 3 or 4 days and in exceptional cases 2 weeks or more. While almost always lacking witnesses, such hearings are intense (3 or 5 Judges) and the focus is on testing by oral argument the opposing legal and factual arguments put forward by counsel previously in written submissions. That process involves the interplay of counsel and not just one Judge but either 3 or 5 Judges (depending on which appellate court we are talking of).
Turning then to trials. The current High Court Protocol to deal with this situation, issued on 23 April 2020, states:
(1) There will be no criminal trials before 3 August 2020 – obviously necessary given the almost impossible problem of keeping jurors at a “safe social distance”. That date must be regarded as being subject to change.
(2) The Court will hear substantive civil trials before 25 May, including cases with witnesses, if counsel agree they are ready and able to proceed prior to that date.
(3) However (and presumably this applies to cases heard after 25 May), cases involving witnesses “will generally be conducted using remote means of participation with the court-taker, counsel and judge normally being in the courtroom. Trial judges will decide on a case by case basis whether individual witnesses are required to attend court to give evidence”.
(4) In respect of cases that have fixtures but do not involve witnesses, the Judges will decide “if they can appropriately be heard by telephone link or other remote means” (with the hearing being recorded).
(5) Where counsel or parties or witnesses are required to attend court, the hearings will held in larger courtrooms to provide physical distancing.
The current Supreme Court and Court of Appeal Remote Hearings Protocol was issued on 17 April 2020 by the Chief Justice and the President of the Court of Appeal. That provides for what is euphemistically called “virtual hearings” – remote hearings “using a web browser-based video conferencing system supported by the Ministry of Justice and Spark”. An “allotted time for oral submissions will be made” and it is acknowledged that the hearing will be “less interactive than a hearing-in-person”. Detailed instructions (including speaking slowly, reducing body movement, taking care of camera angles, glare from windows and background) as to operation of a participant’s device are laid down. It is said that some participants may be attending by audio only and that participants should remain alert to any deterioration in picture and sound quality.
The Court of Appeal has issued 2 Practice Notes relating to its position. The 25 March 2020 Practice Note stated that, for so long as Level 3 or Level 4 Alerts were in place, the Court would only conduct urgent hearings. In the case of Level 4, it was said that it was likely to conduct hearings remotely only (either by audio visual link (AVL) or telephone or on the papers). Non-urgent hearings with fixtures would be adjourned. On 23 April 2020, the Court of Appeal issued a further Practice Note which, while providing for remote (virtual) hearings in accordance with the 17 April 2020 Protocol, also stated that, while we are locked in Alert Level 3, hearings in which viva voce evidence was to be given (rare of course in that Court) or that were of more than one day’s duration or that involved a large number of documents may not be suitable for remote hearing without special arrangements. and that the President or the Judge presiding may direct that the hearing take place in the courtroom in the usual way if suitable hearing technology is not available.
The recognition that cases of the kind referred to and virtual hearings are unlikely to be compatible is welcome. It is to be hoped that a similar, unequivocal, approach will be taken in both the Supreme Court and the High Court. So far as I am aware, the Supreme Court has not issued a Practice Note similar to that of the Court of Appeal.
It is ironic that during the New Zealand Law Society Webinar on the same day as the issue of the Protocol and at which the Chief Justice, Justice Miller from the Court of Appeal and the Leaders of the High Court spoke, there were two major interruptions of picture and sound transmission. Further, while it did conduct a virtual hearing last week of a day’s duration, the Supreme Court has already had to abandon a plan to conduct a two day hearing remotely in the near future because it could not guarantee the reliability of the audio-visual platform provided by the Ministry of Justice and Spark. (Hmm… Rugby World Cup streaming repeat?).
Interestingly and no doubt mindful of its position as the supreme court of the land, the High Court of Australia has said that, with the exception of urgent matters which will be heard using video conferencing, it will not sit in April, May or June and in June will review its policy past that date.
In trial courts in Australia, the same tension exists as that in New Zealand between wanting to continue the work of the courts and the danger of damaging the quality, or the perception of quality, of the judicial process. A Federal Court Judge in Western Australia rejected an application to adjourn a 6 week trial for 6 months, asserting that, notwithstanding acknowledged difficulties with a virtual trial, he thought specific issues could be dealt with as they arise and that it was “not feasible nor consistent with overarching concerns of the administration of justice to stop the work of the courts for such a period” (Capic v. Ford Motor Company of Australia  FCA 486 per Perram J). On the other hand, Sackar J in the New South Wales Supreme Court vacated a hearing on the grounds that cross-examination by videolink, where serious allegations and a lack of corroborative evidence meant that the demeanour of witnesses would play a significant part, may lead to unfairness to both parties (Quince v. Quince  NSWSC 326. In another New South Wales Supreme Court case (R. v. McDonald and others  NSWSC 382), Fullerton J adjourned a part heard trial. The parties were experiencing persistent technical difficulties in a complex situation with multiple parties, the need for cross-examination of several witnesses and a Bundle of Documents exceeding 7500 pages.
There is of course precedent and now a reasonable degree of experience of individual witnesses – usually those overseas – giving evidence by audio-visual link (AVL). That is not to say that it has ever been accepted as being a desirable mode of taking evidence, especially if it is contentious. It is very much the exception, not the norm. The reliability of the video screening has always been problematic – as the Supreme Court itself found recently, as noted. Witnesses whose credibility may be under challenge and expert witnesses pose special difficulties, as recognized in the Australian decisions referred to above and in our Court of Appeal’s latest Practice Note (but, illogically, not in the High Court Protocol issued on the same date). The need for secure arrangements at the location of the witness giving remote evidence can be an issue.
In 2010 it was thought necessary to enact the Courts (Remote Participation) Act both to authorise such evidence but also to safeguard the integrity of the location from which it was given as far as that was possible. Section 5 of that Act sets out the criteria which must be observed when a
determination is made allowing for participation in the hearing by AVL. These include the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding including (a) the ability to assess the credibility of witnesses and the reliability of the evidence presented; and (b) the level of contact with other participants. The term “participant” is defined as comprising any of: a party, counsel, a witness, a jury member, the judge, the Registrar and any other person directly involved in the proceeding whom the judge (or Registrar) considers appropriate.
There may be a question – which I will put out there for debate - as to whether it is permissible for a determination to be made that all of the above are to be collectively required to participate in a Court hearing or trial by AVL?
However, my essential point is that virtual hearing technology (even if it were totally reliable, which it is not) is inherently unable to provide a top quality judicial process in respect of the categories of case referred to above, no matter in which court.
For me, the real question is whether the desire to conduct hearings and trials of substance now, rather than in several months’ time, using a process that is vastly inferior to the traditional hearing where all participants are in the courtroom (if that is truly not reasonably safe), is worth the damage that will be done to the principles that our judicial system has always been based on. My answer is no.
In saying that, I also say that I would prefer that litigants incur the costs of delay in having their case heard at a time when it is safe to do so in the courtroom (assuming, which I doubt, that it is not safe in Alert Level 3 if social distance and hygiene safeguards are observed).
Civil cases for the most part are about money, directly or indirectly. Litigants who are kept out of their money for a period, even a lengthy period, while the measures to deal with Covid-19 work their way through, are in no different position from businesses which are closed and from employees and contractors who are out of work. The judicial system and the judicial process should not be compromised and ultimately damaged to give them a priority and advantage that others do not have if it is truly the case that virtual hearings must be the norm.
One final question. What is more risky – attending the courtroom for a trial or appellate hearing with sensible safeguards (which are being instituted in any event) for those present? Or going to the supermarket?
Below from my good friend and excellent barrister, Alan Sorrell, in response to my piece on Covid-19. There is no doubt that the arbitration/mediation sector will benefit from the present situation as it affects the courts, whether by virtue of enforced delays or virtual hearings (that perceptive litigants properly advised are uncomfortable with).
Thought provoking article. My comments are confined to civil litigation. You seem to have overlooked litigant autonomy? Evidence by affidavit, hearings on the papers, evidence taken as read, time allocations etc. Isn't it acceptable for parties to choose virtual hearings? I think most will when the choice is a holding pattern of unknown duration. Arbitration becomes more attractive. Seize the opportunity for functional justice with accessibility for those not attractive as pro bono recipients derived or at least enhanced by everyday technology.
Alan Sorrell, Bankside Chambers
28 April 2020