The Civil Justice Council have published a report on the effect of Covid-19 on the Civil Justice System.
The full report can be found here.
There has been a deluge of documents relating to the legal system and its work during the pandemic and this most recent document runs to 89 pages, without appendices, so we have read the report and condensed some key areas to help you to digest this information more easily.
The report acknowledges what many lawyers have experienced – that the move to remote hearings “has been swifter and easier in the senior and commercial courts where resources are greater and levels of legal representation are higher, and more problematic in the county court” [paras 1.2, 2.2].
Section 4 of the report covers the findings of research undertaken or facilitated by Tortoise Media, the judiciary, the Legal Education Foundation and others during the period 1 May 2020 to 15 May 2020, with the majority of hearings reported on taking place between 1-7 May 2020. Of the 1077 responses to the online survey it is important to note that only 17 responses were from lay court users [para 1.5], 871 were from lawyers [para 1.13]. Interestingly, changes in claimant behaviour were felt to have had an impact on the types of cases proceeding [paras 1.9, 4.3] with debt companies in particular altering their behaviour significantly in response to the crisis. Section 3 of the report acknowledges the limitations resulting from data which led to the findings of the study [paras 3.13-3.18].
As expected, there has been an impact on the type of cases proceedings in the Civil Justice System as a result of Covid-19. Very few housing-related cases were heard and priorities for listing meant that family cases took priority in many instances. The report confirms that 53.09% of hearings were interim hearings [para 5.22] with 39.9% relating to personal injury matters [para 5.23]. Notably there has been a widely reported reduction in the availability of access to free legal advice, and the consequent detrimental impact on this on access to justice for vulnerable groups [para 4.4]. This is coupled with a growth in levels of wider legal need due to the economic implications of Covid-19 [para 4.5]. It is believed that, due to the stay on possessions at least, the Civil Justice System will face increased pressure in the coming months [para 4.6].
The report also acknowledges the pressures that Covid-19 has had on practitioners – the adjournment of hearings in accordance with guidance which is sometimes seen as ‘too flexible’ has reduced the work, and of course pay, available to practitioners [paras 4-7-4.9]. Garden Court Chambers have suggested in their response that the disproportionate impact on barristers with caring responsibilities, particularly for children, should be monitored [para 4.10].
Section 5 details the experiences of lawyers and section 6 the experience of lay users.
71.5% of lawyers described their experience as positive or very positive whereas seven of the 11 lay respondents reported that the hearing had been a stressful experience [para6.3]. Lawyers responding to the survey ‘in general’ felt that they would have benefitted from the provision of more detailed information about the conduct of the hearing – suggestions included that the Notice of Hearing should include information such as mode of hearing dial in details, timetabling etc [para 5.3]. There are further ‘persistent’ concerns raised over arrangements for e-bundles with common paper-related difficulties seemingly exacerbated by the pandemic [para 5.6]. Technical support was lacking in almost 1/3 of cases although many reported that it had not been used or needed [para 5.16].
Almost half of all hearings experienced technical difficulties [paras 1.17, 5.28-5.35]. Largely these difficulties seem to arise from joining details for hearings being incorrect or arriving late or not at all [5.32]. Others experienced firewall and compatibility issues which can hopefully be ironed out with time. There is a clear benefit to having helpful staff, such as judges’ clerks, on hand throughout the hearing to provide support [para 5.36]. From personal experience, a well-prepared e-bundle will ensure that a remote trial is far more efficient, and might perhaps work well as an alternative to the traditional paper bundles, when we return to in-person hearings. Participants are expected to become less forgiving on technical issues as time goes on [para 5.71], and this may result in greater expectation on HMCTS and even legal representatives, to learn more about technology used for hearings.
Unlike the anecdotal evidence from criminal and family proceedings, a relatively low proportion of respondents to the survey found that they had problems communicating between lawyers and clients [para 5.53]. Significant multi-tasking is noted to have been required to communicate with clients during remote hearings [para 5.54], which has presented considerable challenges. The lack of opportunity for private discussion and liaison prior to a hearing and during breaks was further reported as an issue [para 5.55].
Overall, respondents felt that hearings in person were preferable to all forms of remote hearings, however there was an understanding that video hearings were a reasonable alternative given the restrictions encountered during Covid-19 [para 5.79]. As a practical point, it will be increasingly important for those with upcoming remote hearings to consider the impact of fatigue on clients and their representatives, as well as the judiciary and HMCTS staff [paras 5.85-8].
All of the lay respondents to the survey described themselves as White British and reported that they could speak English very well [para 6.3]. The report notes that there have been issues with the availability of interpreters [para 6.9]. A combination of factors including the mode of hearing, lack of access to legal advice, and unfamiliar technology, appear to have made remote hearings in the Civil Justice System even more difficult for litigants in person [paras 6.20-21]. Many legal professionals who responded to the survey have raised concerns regarding lay court users’ experiences of remote hearings. It is further even more difficult for lay users to assess whether the outcome of a remote hearing would have been similar to the outcome had the hearing been heard in person [para 6.23].
Section 7 covers the impact on open justice. 17 complete responses to the survey were submitted by journalists and court reporters, two by researchers and two by members of the public. Four collective responses were submitted on behalf of large press organisations [para 7.3]. The report found that there was a divide between the Court of Appeal and High Court in relation to publicly available information about hearings and how to attend them [para 7.4]. Access for members of accredited media organisations was greater than access for the public, however no respondents reported that their access had been refused.
Difficulties seem to have arisen as a result of the court’s failure to respond to queries in a timely fashion. Whilst it is understandable that court staff will have had an overwhelming administrative case load, open justice remains an important principle of the Civil Justice System and it is hoped that courts will be able to take the lead from the Supreme Court and Court of Appeal who have been highly accessible for a long time. Sustained investment in HMCTS will likely be necessary to make this a reality. Where HMCTS staff were contactable the majority of respondents found them to be helpful [para 7.8]. A consistent approach in the future to listing and access is clearly key to improving upon the current situation.
Finally – section 8 of the report makes recommendations for recovery and ‘managing the backlog’. The key recommendations are: expanding the use of remote hearings for large commercial disputes (interestingly, Mishcon de Reya’s submission highlighted the reduction in carbon emissions this would entail [para 8.4]); expanding the use of remote hearings for interim hearings and trials without live witness evidence; improving equipment and support provided to the judge (reflecting the noticeable chasm between provision in the Court of Appeal/High Court compared to the County Court); investing in better infrastructure to facilitate the use of e-bundles; consideration of removing certain types of claim from the system entirely (such as private parking disputes); and urgent investigation into the resumption of in-person hearings.
The vulnerability of parties participating in housing cases is considered in detail by the report [paras 8.15-8.22] and it is clear that the working group established by the Civil Justice Council has much to address. One of the most interesting suggestions is an amendment to the pre action protocol to require landlords/lenders to demonstrate that they have taken proactive steps to secure legal advice for tenants [para 8.20].
It is clear that we may now be looking at attending hearings in alternative venues, or not attending at all, for many more months. A key take-away is to ensure that you have mastered the relevant technology, and to be patient with those working with a system which was already awaiting investment and reform prior to the pandemic.