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06 JUL 2020

VIRTUAL COURTS ANOTHER STEP CLOSER?

James Burgoyne of Brunel Professions on Technology and Construction Court

The prospect of virtual courts and remote hearings being used in professional negligence claims was previously discussed, following trials of online dispute resolution in other legal areas.

COVID-19 and its attendant anti-Coronavirus measures have brought this prospect into actuality, with the Technology and Construction Court (TCC) having ordered a fully remote hearing in a commercial case involving several defendants.

The judge was originally minded to order a face to face hearing with the legal representatives physically present in the court building, and with other relevant parties attending remotely. Having listened to submissions made by the parties in a pre-trial hearing, the judge ordered a fully remote trial.

One of the issues considered in the pre-trial hearing was whether it was possible to have a fair trial if it was heard remotely. The judge decided that the alternative approaches to proceedings did not contravene the fundamental requirement of fairness. He noted that the participants were professional people giving their evidence in their professional capacity, and that there were no allegations of dishonesty which would give rise to additional considerations regarding evidence.

It remains to be seen whether this is a crisis driven measure, or another instance of a “new-normal” which is here to stay. It is noteworthy that a significant part of the judge’s reasoning was based on the requirements of social distancing and the physical space available in the court room; the physical size of the parties’ documents was an issue, whether these were in hard copy or in electronic form. There were also concerns regarding the operation of “track and trace” systems, and therefore the prospect of one or more key parties being called on to self-isolate after the commencement of the trial, and with the disruption to a parties’ case and impact on fairness that this would entail.

The social distancing and track & trace concerns are obviously particular to the present health crisis, and as such the TCC’s approach to remote hearings may prove to be temporary and confined to a particular and specific time.

On a similar note, it comes as discussions are continuing whether the criminal courts can and should decide some prosecutions without a jury, in view of the present health crisis, and the need to work through a backlog of cases which has accumulated due to the lockdown.

Nevertheless, even if argued that it is not intended to set a precedent, the present steps provide more evidence and experience of the challenges and benefits of virtual courts. The feedback of participants after the conclusion of proceedings will obviously be key in assessing these further.

Modernisation and fundamental changes to the courts and judicial system have elicited strong views from different parties. The drive toward change has been determined, but has evoked passionate criticism from some quarters. It has to be recognised that changes driven by practical and commonsense concerns do have significant constitutional and conceptual implications.

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James  Burgoyne

James Burgoyne

Director - Claims & Technical

James joined Brunel in 2009 and heads up the Technical and Claims Department. As well as representing Brunel on the ACE PII panel, he writes occasional pieces for us on insurance, risk and associated topics.

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