Coronavirus has forced the courts to rethink how trials are held. With indoor gatherings having been banned for the best part of the last 18 months, the courts quickly adopted new measures to allow court hearings to continue throughout the pandemic. Whilst Covid restrictions have begun to relax, many courts continue to hold hearings remotely.
The Business and Property Courts (‘BPC’) have published their ongoing guidance regarding the practical measures to be followed when preparing for and attending remote hearings. They have confirmed that, as of 15 September 2021, the default position for all hearings under half a day will be for such hearings to take place remotely. The mode of hearing remains a judicial decision and the court will consider live hearings where it is considered more appropriate.
For longer applications and trials, the approach taken will be a decision by a judge on the facts of each case. The Listing Office will request that parties express a preference, supported by reasons and the final decision will be referred to a judge. The decision will always be a discretionary judicial decision with the criterion being the interests of justice in all the circumstances of the case. This criterion will produce a range of different answers in different cases.
Where hearings are either remote or a hybrid of remote and in person, there shall be a broader range of accessibility for participants. The BPC have provided examples ranging from proceedings which are fully remote to proceedings whereby all participants are in person, other than a single participant who is afforded remote access. This approach provides more flexibility for those affected by Covid to participate in hearings where it may otherwise be unsafe for them to attend court, such as the clinically vulnerable.
The BPC have also provided further guidance on bundles. In the past 18 months, bundles have moved away from physical copies to a hybrid of both electronic bundles and hard copies. The preference from judges and the court regarding their preference towards either a hard copy or e-copy bundle has varied from matter to matter. The BPC however have now outlined that for the foreseeable future the default format will be electronic bundles. Hard copy bundles should not be lodged unless they have been requested by the judge hearing the case. In our experience, many judges still like to have paper files.
Parties should continue to carefully review the guidance surrounding e-bundle preparation. The courts requirements for e-bundles, which includes optical character recognition, bookmarking and hyperlinking, amongst other standards, is in many cases mandatory. In its latest update, the BPC has put particular emphasis on the fact that that text on all pages must be selectable to facilitate comments and highlights by the judge (i.e. OCR).
The latest BPC guidance provides a very good example of the extent to which Covid has had a lasting impact on working life and on court procedure. Whereas 18 months ago the parties would habitually attend a hearing at the court and would refer to physical pieces of paper earlier lodged at court, the standard position in the BPC now is for hearings under half a day to be held remotely with electronic bundles.
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