Remote Hearings 21 months on – Here to stay?

THE COURTS’ SERVICE INITIAL AND CONTINUING RESPONSE TO THE COVID-19 PANDEMIC

In response to the pandemic and the Government of Ireland’s restrictions placed on social interactions to stop the spread of COVID-19, the Courts Service of Ireland quickly adopted significant measures to reduce the number of people attending Court physically, including the provision for “remote” / “virtual” hearings.  In this article Grace Toher, Solicitor, CKT gives an overview of where the court service is at today and what we might expect for the coming months.

When such measures were introduced in the first quarter of 2020, they were viewed as perhaps a temporary “speed bump” in the administration of justice. Now, 21-months on the systems in place for dealing with remote Court hearings look like they are here to stay.  What first was seen as a daunting phenomenon, has had some welcomed advantages.

The upcoming month looks to be on unsteady ground again as regards restrictions on the operation of certain businesses, and the word “lockdown” is once again at the forefront of our minds. It is hoped that the Courts’ service is now well equipped to deal with the administration of justice remotely for the most part, if required, without significant issues.  While restrictions may be put in place for social interactions, it is possible that this would not have a knock-on effect to the smooth running of litigation.

When initially introduced it was thought that virtual hearings would be well suited to case management type matters, call overs, lists to fix dates and administrative applications, as time goes on, full remote hearings may slowly become “the norm”.

In the second quarter of 2021, the Courts service reached a milestone of 5,000 virtual Court sessions since virtual Courts were introduced in May 2020.

LEGISLATIVE INTERVENTION

The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“the Act”) introduced reforms to assist the Courts in response to the challenges brought on by the Covid-19 pandemic. Welcomed provisions in the Act include:

• The introduction of legislative footing for remote hearings to take place, provided such hearings are in the interests of justice and not unfair to any party.
• Expansion of the Irish Court’s use of technology.
• Provision that parties to civil proceedings can apply for their case to be heard remotely or the Court can direct same on its own motion.
• Provision for the Court to retain the same powers when its proceedings are conducted remotely and for any person who participates by remote hearing having the same duties, obligations and liabilities as when proceedings are held in person.

Further provisions in the Act allows for preparation for Court hearings to be more conducive and can be undertaken remotely,  including:

• The introduction of a “Statement of Truth” which may be made electronically, which serves to, if needed, replace the traditional “swearing of an affidavit” which required a person giving written evidence to physically attend an independent solicitor’s office.  The “statement of truth” eliminates the need for “face-to-face” contact in swearing written evidence.
• The lodgement of documents with the Courts by electronic means or “e-filing”, alleviating potentially the need to attend Court to lodge documents or booklets for hearings.
• Allowing for either the Courts’ own technology platform to be used or alternative platforms to be used at the request of parties to the litigation, albeit at cost to the parties.

CONCLUSION:

It will always be the case that certain proceedings are more susceptible to physical hearings. As well as fully virtual hearings, there is also a hybrid model now in place in Court rooms, with cases being heard physically, with the allowance for witnesses and parties to log in and give evidence remotely. This is certainly something that will increase the efficiency of cases, and potentially save on travel time and costs associated with travel, particularly, for example, where an expert witnesses may be based abroad.

In general, the remote hearings model should be welcomed and certainly tackles the backlog of cases and applications that were initially mounting at the beginning of the pandemic.

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