Innovation and modernization in the court system and in arbitration as a result of COVID-19

Kerman & Co. website
September 28, 2020 Advisory

Introduction

In 2016 HM Courts & Tribunal Service (HMCTS) launched its multi-year and multi-faceted court reform project in collaboration with the senior judiciary and the Ministry of Justice.  The project’s stated aim was to improve and modernise the court and tribunal services by implementing new technology and modern ways of working.

The reforms to civil justice delivered prior to the pandemic were somewhat limited and included the continued rolling-out of e-filing in the courts: the issuing of claims, the filing of documents and the payment of court fees online.

The advent of the virus has had a very rapid catalysing effect on the use of the available digital technology and on the modernising of working practices in the courts, particularly in the area of remote (virtual) hearings.

There have also been corresponding modernising changes to the rules governing arbitrations under the auspices of the London Court of International Arbitration (LCIA).

Virtual hearings in the courts

It was clear even from the early stages of the pandemic that the senior judiciary were deeply concerned about its potential impact on the administration of justice.

In a statement issued on 19 March 2020 the Lord Chief Justice acknowledged that as a result of the restrictions likely to be imposed as a result of the pandemic it would “not be business as usual” in the courts i.e. with physical hearings.  However, the Lord Chief Justice noted that there was an obligation to continue with the work of the courts as a vital public service because without hearings access to justice would become a “mirage”.  He commented that the rules in civil and family courts were flexible enough to enable video and telephone hearings and hearings conducted by Skype.

A number of measures introduced as the virus took hold assisted in achieving this laudable aim.  These included the coming into force of the Coronavirus Act 2020 (the Act), which among other things made further provision for audio and video hearings[1], and the adoption of a supportive amendment to the Civil Procedure Rules (CPR).[2]

In its report published on 30 July 2020[3] the House of Commons Justice Committee noted that digital technology had enabled certain civil jurisdictions to continue to operate close to normal pre-Covid-19 levels.  In his evidence given to the Justice Committee on 22 May the Lord Chief Justice had said that in the High Court and in the business and property courts around the country in the region of 80% of the ordinary business of the courts was being transacted.  The report described as “remarkable” and as a substantial achievement how quickly the courts had managed to move to turn digitally-enabled remote hearings into the ‘new normal’.

The Justice Committee’s report also noted the high degree of satisfaction with virtual hearings in the civil justice system, at least among practitioners.  We share this view.  We have witnessed at first hand in the many virtual hearings we been involved in since the start of the pandemic how enthusiastically the available technology has been adopted and effectively used by all involved, including the use of extensive electronically filed ‘bundles’ of papers.

There remain areas which could be improved of course, including in the area of digital connectivity which can occasionally be unreliable and has led to the odd frustrating ‘pause’ in the virtual proceedings.  However, it is our experience that all participants in the hearings have been flexible and understanding.  More pertinently any pauses there may have been have had no impact on the overall effectiveness of the virtual hearing.  These technical issues will undoubtedly become less frequent as technology develops, and to try and deal with these issues HMCTS has recently been extending its Cloud Video Platform to the civil courts to sit alongside Skype – at present the court’s primary platform for the delivery of virtual hearings.

Another acknowledged challenge is the ability of the public to be able to find out about and to access virtual hearings in order to give effect to the important principle of open justice.  At present the door to the ‘virtual’ court is not as open to the public as it would be in the real world, albeit that the report from the Justice Committee noted that from the senior judiciary’s perspective this concern is generally satisfied by the ability of journalists to be admitted to virtual hearings.

Naturally, not all hearings in commercial matters, particularly lengthy trials, are suitable to be dealt with virtually.  The decision whether a physical ‘in person’ hearing is necessary to ensure that justice is achieved is ultimately that of the judge.

Reforms to the LCIA arbitration rules

The LCIA has adopted new arbitration rules which are effective from 1 October 2020.

The changes to the rules, which were being finalised as the pandemic took hold, cover a number of areas.  In common with the modernising changes seen in the courts as a result of the pandemic, the new arbitration rules now include an express provision allowing hearings in arbitral proceedings to take place virtually (whether by conference call, videoconference or otherwise) as well as in person[4].

The new rules also expressly provide that the primary method of communication with the LCIA is to be electronic, including for the delivery of Requests for Arbitration and Responses[5].  Indeed the rules provide that “prior written approval” should be sought from the LCIA for anything other than electronic communications.

Concluding remarks

The pandemic has re-shaped many areas of our lives, both personally and in a business context.  Those changes have sometimes been very dramatic, sometimes less so.  They have all come about with remarkable rapidity. These changes include a leap forward in modernisation of the courts and are echoed in the recent changes to the provisions governing arbitrations under the auspices of the LCIA.

[1]Section 55 and Schedule 25

[2]CPR PD51Y

[3]Coronavirus (COVID-19): The impact on courts’

[4]Rule 19.2, LCIA Arbitration Rules (2020)

[5]Rules 4.1 and 4.2, LCIA Arbitration Rules (2020)

Originally published at Kermanco.com prior to the firm’s combination with Armstrong Teasdale in early 2021.

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