Lessons from first remote Court hearings in Ireland and the UK

While it was the intention of the Irish courts to develop technology to facilitate remote hearings over the next number of years, this process has been significantly accelerated over the past number of weeks.

In a statement on 31 March 2020, the Chief Justice and the Presidents of all Jurisdictions of the Courts confirmed that ICT infrastructure was under development to facilitate remote hearings. On 9^th April 2020, it was confirmed that this technology was in place and that mock trials would be piloted to determine the viability of remote trials in Irish courtrooms. On Monday 20 April 2020, the Supreme Court conducted its first remote hearing. This is a case-management hearing relating to a number of cases. The court of Appeal also held its first remote hearing. Today the Court of Appeal held a callover involving over 80 different participants.

In a statement before the Supreme Court prior to the first remote hearing on April 20^th, Mr. Justice Frank Clarke outlined that mock trials had been conducted and as a result, he believed the courts were ready to gradually move towards conducting trials remotely. This is being rolled out at Supreme Court and Court of Appeal level initially. The Chief Justice acknowledged that this modus operandi may only be suitable for certain types of High Court proceedings and a limited number of cases in the District or Circuit Courts.

From a practical perspective, these remote hearings will operate using a video streaming app called PEXIP but parties will also be able to interact using other services such as Zoom or Skype. Mr. Justice Frank Clarke also suggested that the practice of issuing of a “statement of case” would be implemented prior to these remote trials. A “statement of case” will be issued by the Judges presiding over the case some 10 – 14 days before the hearing. It will set out the Court’s understanding of the facts, the relevant findings of the Courts which have dealt with the case, the issues which arise on the appeal and the positions of the parties on those issues, and where the Court is unclear on any of those matter, clarification will be sought. It is hoped that this procedure will bring greater clarity to the issues in advance and reduce the need for interventions from the court for purely clarification purposes. However, it will most likely mean that substantive appeals may not go ahead for a few weeks at least, to allow for these statements of case to be prepared.

The Chief Justice indicated that some initial appeals had been identified as suitable and the parties concerned would shortly be contacted about the possibility of cases commencing to be heard under the new procedures in the weeks commencing May 11th.

The courts in the United Kingdom have at this point conducted a number of cases remotely. The recent case of National Bank of Kazakhstan v The Bank of New York Mellon was one such case in which a virtual trial took place over a number of days with the use of videoconferencing technology. Some of the more minor challenges faced in that trial related to witnesses joining proceedings too early, however, this was dealt with by a lobby type facility which allows the host to only grant a witness access to the stream when the Court is ready. During the trial the legal teams also adopted a process of asking which witnesses were in the room with them, asking them what materials they had and ensuring the Judge gave them ample reminders not to discuss their findings during breaks. This is something that is virtually impossible to police in these scenarios however.

Minor technical details also arose, such as, having to ask counsel to mute their microphones when not speaking so the rustling of papers or other noise coming from their device would not interrupt the speaking party. Apparently this was an issue during the Court of Appeal callover on 21 April in this jurisdiction also.

In the UK case, WhatsApp was the forum of choice, which replaced the common practice of passing “post-it” notes, particularly between solicitors and barristers and one of the barristers involved in this case felt that this instant messaging was preferable to sticky notes.

In the United Kingdom, there is a similar requirement as the one that exists under Article 34.1 of the Irish Constitution which is the requirement that justice be administered in public. In order to satisfy this requirement the UK trial was streamed publically via YouTube.

Mr. Justice Frank Clarke highlighted in his address to the Supreme Court on April 20 2020 that while other countries had conducted remote trials, they were coming from a higher technological standard than that which exists in the Irish courts. Therefore, it remains to be seen how these remote trials will fare in the Irish courts.

If they are successful, it could have far-reaching effects on the way in which the Irish courts conduct their business in the future. It could lead to saving of costs in litigation in the future and it could prove to be more efficient in terms of resourcing.