The legal sector had to adapt in short order to the restrictions imposed by lockdown with significant changes to the way hearings are conducted and some areas of law having to rapidly evolve in order to remain relevant.
In England and Wales, as early as March 2020 courts were using technology to allow participants to attend remote hearings. The courts were certainly not starting from scratch in deploying virtual technology, for example, to allow a witness to appear from another location, but this could hardly be considered to be the norm. The move towards a more digitised court environment has long been considered inevitable yet it was the ‘real-life experience’ of the pandemic that forced the imperative. In 2016, Lord Justice Michael Briggs evaluated the potential for online courts, noting that the legacy IT systems at the time were in need of a makeover. That observation might now seem prescient.
National Bank of Kazakhstan & Anor v The Bank of New York Mellon & ors [2020] EWHC 916 (Comm) is an early example of how technology was deployed in a virtual hearing. In anticipation of a lockdown, the parties were directed to attend a hearing on 19 March 2020 and against the defendants’ submissions that the trial should be adjourned. This case is symptomatic of a ‘no nonsense’ approach to moving to full virtual trials, in appropriate circumstances. On 24 March 2020, the Supreme Court conducted its first-ever remote hearing in Fowler (Respondent) v Commissioners for Her Majesty’s Revenue and Customs [2020] UKSC 22. The first judgment to be handed down remotely was Elgizouli (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 10.
Responses to the pandemic have tested the courts’ digital preparedness. While remote hearings or appearances happened pre-pandemic – with video links being used where a physical hearing was not needed – there were concerns about the capacity of video links to meet increased demands, especially if they are being used for evidence.
The pandemic has seen the growth of comprehensive commercial virtual trial solutions, comprising services such as video-conferencing, live streaming, e-bundling, and transcription. There is a multiplicity of providers, including Epiq Global, Opus2 and Sparq have developed their pre-pandemic offerings to cater for the increased demand. The courts in England and Wales have yet to declare a provider of choice. There is some reason to suppose some reticence in so doing, not least to preserve a level-playing field and competition and to minimise the risk of being wedded to a particular provider in a dynamic environment. We can expect that factors such as reliability, security, confidentiality, and comprehensiveness will govern technology choices.
In addition to affecting the way hearings are conducted, COVID-19 also led to intensified growth in specific areas of law, which are more important post-pandemic than ever.
Government regulations inevitably led to businesses finding it impossible or extremely difficult to perform their contractual duties. Whether disputes will arise within supply and production contracts depends largely on the underlying contractual framework. Each case will turn on its own facts. Parties affected by the pandemic may find relief if their contractual agreements include “Force Majeure” clauses. In the absence of such protective clauses, many businesses find themselves in breach of their arrangements unless they can rely on general doctrines such as that of frustration.
In addition to COVID-related disputes, legal technology and social media regulation are other previously under-explored areas of law that may see growth. There is an imperative to have digital solutions to deal with disputes with customers over cancellations and delays, employment disputes, education law disputes, and with the inevitable economic hit, insolvency, mental health law, and family law. The virus has led to unprecedented peace-time restrictions on public liberty and enjoyment.
The pandemic crisis is also a representation of how dynamic the judicial landscape is. The courtroom has seen a transition in the type of cases in the last year and the last few months suggest these trends are not relenting: cases of increased commercial disputes, cyber-fraud, financial services disputes, and data-privacy breaches are some visible changes that courtrooms can anticipate in terms of subject-matter in a post-coronavirus world and which the writer anticipates are not a temporary aberration. Of relevance to these issues, in the areas of cybercrime, cyber-war, and surveillance, for example, is the case of Big Brother Watch and Others v United Kingdom (Application no. 58170/13) concerning the right to a fair trial under Article 6, privacy under Article 8, freedom of expression under Article 10 and non-discrimination under Article 14 of the European Convention on Human Rights.
The move towards a more digitised court environment has long been considered inevitable yet it was the ‘real-life experience’ of the pandemic that forced the imperative.
With any process of technology adoption and deployment, each case will be managed according to its circumstances. The oral tradition in advocacy in England and Wales means that we are not yet seeing the ‘mainstreaming’ of virtual courtrooms for the foreseeable future. The pandemic has however shown that technology can and does yield efficiencies which would have been scarcely believable only eighteen months ago and this is here to stay. The move to virtual environments is not a linear move to ubiquitous virtual hearings but, rather, a transition to a more hybridised courtroom with enhanced digitised functionality. This embraces what technology has to offer in supporting, or in some cases replacing, a face-to-face interaction. Despite the exigencies of the pandemic, the courts of England and Wales have remained open for business, albeit in a more digitised form and having had a dose of realism. In the London commercial courts in 2020/21, there were 292 cases and 1,336 litigants, a substantial increase on last year, where there were 198 and 808 respectively. This suggests some resilience not only in addressing the immediate situation of the pandemic, but some cause for optimism that the attractions of litigating in the jurisdiction will continue.
This contribution is taken from ‘Commercial Courts Report 2021’ produced by Portland’s specialist Litigation and Disputes practice. Sign up to download the report here.