The conduct by courts of remote hearings has been one of the significant changes to the administration of the legal system caused by the COVID-19 pandemic. In the early stages of the pandemic, remote hearings were turned to as a way, in some cases the only way, by which courts could continue to provide access to justice. Judgments published during this period tended to emphasise that remote procedures were being adopted by necessity rather than choice, and were to be endured rather than embraced.
Remote court procedures are of course not new but they have traditionally been an exception to the default position of face to face proceedings. Prior to the pandemic the accepted wisdom was that there were inherent limitations which made remote hearings ineffective or, at the very least, undesirable. For a participant to be entitled to appear remotely the court needed to be persuaded that there were special factors weighing in favour of remote participation (see, for example, Australian Securities and Investments Commission v Rich (2004) 49 ACSR 578 at [19]-[43]).
As the pandemic has progressed, and jurisdictions have been forced to prolong or periodically reinstate lockdown measures, remote hearings have become commonplace. Courts have moved on from referring to remote hearings as a necessary inconvenience, to affirming that remote hearings, even whole trials conducted remotely, can be as fair and as open as their face to face equivalents. In some cases, such as interlocutory applications, remote attendance has been seen as way of promoting greater efficiency in disposing of routine procedural disputes.
While the preference for physical attendance in court for the conduct of trials remains, at least where the assessment of witness demeanour is likely to be of relevance, with the increased familiarity with remote trials, courts have recognised that the practical disadvantages are not so great as previously assumed. In fact, in some respects the use of video conferencing affords certain advantages to the court. Looking at the experiences in common law jurisdictions, courts should seriously be considering whether, once the pandemic passes, remote hearings should be here stay.
The experience in Australia
Capic v Ford Motor Company of Australia Ltd [2020] FCA 486 (15 April 2020) concerned an application to adjourn proceedings in circumstances where a virtual trial was said by the respondent to be unsatisfactory. The respondent’s submissions focused on a range of logistical difficulties that would be encountered. Perram J refused the adjournment, stating “Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will … these are not ordinary circumstances”. His Honour said that it was incumbent on the court and the parties to try their best to make the trial work. While there would be difficulties, including technological limitations, there were steps that parties could take to overcome these.
In Australian Securities Investment Commission v GetSwift Limited [2020] FCA 504 (9 April 2020) Lee J ordered that the trial of a class action should proceed remotely. His Honour explained that his experience of conducting interlocutory hearings and a complex defamation trial remotely had overcome his scepticism about using video conferencing facilities. Lee J observed that “the process … although sub-optimal, was not impaired to such an extent that I considered that there was anything second-rate about the experiences”. Documentary evidence would be given primacy and to the extent that witness demeanour was relevant, in Lee J’s experience, there was “no diminution in being able to assess the difficulty witnesses were experiencing in answering questions, or their hesitations and idiosyncratic reactions when being confronted with questions or documents.” In fact, “in some respects, it was somewhat easier to observe a witness closely through the use of the technology”.
In Construction, Forestry, Maritime, Mining and Energy Union v Andrade Holdings Pty Ltd [2021] FCCA 213 (8 February 2021) permission was sought to give evidence by video link in a wage theft case where one of the applicants was rostered to perform shutdown work on a mine site while the Perth area was in lockdown. The judge had regard to factors outlined in Rich for determining whether to permit remote participation, including “the nature of the evidence, the assessment of credit, management of documents in cross-examination, technological difficulties, and the length of cross-examination, to which might be added, the nature of the case.” On the particular facts the judge declined to grant permission for evidence to be given remotely, noting that it remained the case that “the attendance of witnesses to give evidence in person is the primary and desirable means by which evidence is to be given.”
The experience in the United Kingdom
Re One Blackfriars Ltd [2020] EWHC 845 (Ch) (6 April 2020) concerned an application to adjourn a five week trial due to the COVID-19 pandemic. In refusing an adjournment, the judge held that legislative amendments intended the work of the civil courts to continue, using video and audio technology where possible. There was little evidence that there would be any difficulties for participants, but the judge expected the parties to cooperate and propose ways in which the trial could proceed in the absence of witnesses if they were unable to attend. While there would no doubt be issues with technology, this was not sufficient to warrant an adjournment. There would be no prejudice to any one party because the challenges of a remote trial would apply to the parties equally.
In Municipio de Mariana v BHP Group Plc [2020] EWHC 928 (TCC) (20 April 2020) the High Court had regard to a number of decisions on whether to grant an adjournment (including One Blackfriars) as well as the overriding objective that cases are dealt with justly. In light of that guidance, the court ascertained that five principles governed the choice between granting an adjournment and ordering that proceedings should be heard remotely. These included “the importance of the continued administration of justice” and that “courts must be prepared to hold remote hearings in circumstances where such a move would have been inconceivable only a matter of weeks ago.” However, the question whether “a fair resolution is possible by way of remote hearing will be case-specific.”
In Saxby v UDG Healthcare (UK) Holdings Ltd [2021] EWHC 144 (Ch) (5 February 2021) judgment was delivered in a misrepresentation case following a month long trial conducted remotely in November and December 2020 during the second COVID-19 lockdown. Witnesses gave oral evidence and were cross-examined by video link, although such evidence was not decisive as the judge gave primacy to contemporaneous documentary evidence. In a postscript to the judgment, the judge observed that “the trial, although fully remote, was as fair as a face to face trial would have been.”
The experience in Hong Kong
In Cyberworks Audio Video Technology Ltd v Mei Ah (HK) Co Ltd [2020] HKCFI 347 (28 February 2020) Coleman J held that conducting a directions hearing by teleconference would allow the parties to be heard in circumstances where that might otherwise be prevented or significantly delayed. The judge drew a parallel with arbitral proceedings in which directions hearings by telephone are routine. In reaching his decision, the judge observed that “the current Covid-19 crisis is actually an opportunity for the Courts and parties to litigation to reassess how cases can best be actively managed in furtherance of the underlying objectives” and that there is a “strong argument for moving matters in a similar way beyond the end of the crisis.”
The Court of Appeal confirmed the legality of remote hearings via video conferencing facilities in CSFK v HWH [2020] 2 HKLRD 586 (8 April 2020). Before dealing with the substance of the dispute, the Court of Appeal held that remote hearings were “permissible and lawful” under “the existing statutory frameworks governing civil proceedings”. Although hearings normally take place with all of the participants present in the court room, there is no prohibition on other modes of hearing as long as the requirements of “fairness and openness” are satisfied, which in any event have to be balanced against the public interest in maintaining social distancing measures. The Court of Appeal cited with approval the decision in Cyberworks.
In Lui Chi Hang Hendrick v Independent Police Complaints Council [2020] 2 HKLRD 911 (16 April 2020) the High Court heard a challenge to the legality of decisions of the Independent Police Complaints Council to proactively conduct a fact finding study of public order events. The matter was originally set down to be heard on 24 March 2020, but due to the outbreak of COVID-19 was adjourned to 7 April 2020 and was conducted using video conferencing facilities. As the case was of significant public interest, in order to ensure open justice, screens were set up inside the courtroom where the judge sat as well as at two lift lobbies in the court building to broadcast counsels’ submissions.
Significance
The courts in each of the jurisdictions considered have adopted a principled approach to remote hearings. Whether a matter may adequately be heard remotely depends on the facts of each case, and whether in the circumstances a remote hearing would be consistent with the promotion of open and accessible justice. It also depends on whether a remote hearing would promote the fair and efficient resolution of disputes in accordance with the overriding objectives contained in the court rules. The overwhelming experience has been that in most cases remote hearings can be conducted fairly and efficiently. Practical and logistical difficulties can be overcome. Open justice can be maintained, including where necessary by adopting novel methods to make proceedings available to the public.
In relation to commercial disputes it is not surprising that remote trials have proven a fair and efficient means of conducting proceedings. It has been the case for some time in most commercial cases that courts are provided with trial bundles in electronic form and that parties make use of electronic litigation tools to manage the litigation and facilitate communication. Moreover, the modern approach in commercial matters is that documentary evidence is given primacy over the testimony of witnesses, such that the importance of seeing and hearing live testimony is lessened.[1] As noted by Lee J in GetSwift, viewing witness testimony by video link can even afford the decision maker an advantage. However, there may be specific circumstances where remote procedures will prove inadequate, such as where a serious allegation of fraud needs to be tested by cross-examination without reference to documents,[2] a party is self-represented and lacks the necessary equipment[3] or witnesses located abroad would be prevented from participating.[4]
Perhaps most significantly, remote hearings of interlocutory applications and other procedural matters can provide greater efficiency in case managing disputes. Rather than having counsel, solicitors and clients attend court for what may only be a five minute hearing, such matters can be easily dealt with by telephone or video conference. It has long been recognised that the high costs of litigation can preclude access to justice for many. In a speech delivered to community legal centres in 2012, the then Chief Justice of Western Australia observed that:
“The hard reality is that the cost of legal representation is beyond the reach of many, probably most ordinary Australians … In practice access [to the legal system] is limited to substantial business enterprises, the very wealthy, and those who are provided with some form of assistance.”[5]
The situations in the United Kingdom and Hong Kong are no different. If significant time and expense can be saved, then as Coleman J observed in Cyberworks, there is a strong argument for continuing to make use of remote hearings for procedural matters beyond the end of the pandemic. The Chief Justice of New South Wales has also backed remote hearings of interlocutory disputes as a way of providing a “cheaper form of justice”.[6]
Some jurisdictions have already moved to adopt remote hearings as a regular part their court systems. On 17 March 2021, the Victorian government passed the Justice Legislation Amendment (Systems Enhancements and Other Matters) Bill 2021 to permanently retain measures implemented last year to facilitate remote hearings. Victoria’s Attorney-General described the legislation as “a significant step forward in modernising the law in Victoria in the digital age – using the latest technology to more effectively deliver critical services and improve access to justice.”[7] No doubt other jurisdictions will be following suit.
[1] See Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[23], cited in both GetSwift and Saxby.
[2] Quince v Quince [2020] NSWSC 326 (31 March 2020).
[3] French v Bremner [2020] NSWCA 77 (24 April 2020).
[4] Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539 (23 April 2020) where a remote hearing would have precluded witnesses located in mainland China giving evidence and being cross-examined because of concerns that Chinese law prevented such arrangements. However, mere differences in time zones would not have been an adequate basis for resisting a remote hearing.
[5] Chief Justice Wayne Martin, ‘Creating a Just Future by Improving Access to Justice’ (Address, Community Legal Centres Association Western Australia, 24 October 2012) at 3.
[6] Lawyerly, ‘Top NSW Judge Backs Flexible Approach to Virtual Hearings’ (17 June 2020) https://www.lawyerly.com.au/top-nsw-judge-backs-flexible-approach-to-virtual-hearings/
[7] Attorney-General Jaclyn Symes, ‘New Legislation Keeping the Wheels of Justice Turning’ (Media Release, 17 March 2021) https://www.jaclynsymes.com.au/media-releases/new-legislation-keeping-the-wheels-of-justice-turning/
