Transport for London – written evidence (CIC0016)

 

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

 

 

Response to Constitutional implications of COVID-19: Courts Inquiry

  1. This response is submitted on behalf of Transport for London Legal. We are submitting evidence to the Committee because, during the Covid-19 outbreak, we have had experience of attending virtual hearings in the High Court, Magistrate Court, County Court, Employment Tribunal and Coroners Court. We have only answered the questions where we have comments which we think may assist the Committee.

Virtual proceedings

Question 1 - How effective are virtual court and tribunal proceedings? What are the benefits, disadvantages and challenges of virtual proceedings?

  1. Virtual Court and Tribunal proceedings have been effective when there has been adequate and fully functioning technology available which all parties are fully conversant with using.

 

  1. The benefit of being able to conduct hearings virtually is that it should be a more time-efficient process, given the time spent travelling to court, passing through security and waiting for the hearing to begin. Furthermore, the parties seem to be positively engaging with the virtual litigation process which suggests that they believe it is an effective way to hear cases.

 

  1. However, there have been challenges and/or disadvantages in holding proceedings virtually. Virtual hearings can lead to oversights and misunderstandings, particularly where a party is unrepresented. It can also be difficult to read all of the nuances of what said in a hearing when proceedings take place virtually and this can cause problems in gauging alternative lines of argument. There are also challenges in assuring confidentiality and making sure that everyone is following the proceedings.

 

  1. There have also been IT challenges, for example, getting the technology to work properly, the availability of software and ensuring all participants are on the call and everyone has the functionality to fully participate. In a particular instance in the Coroner’s Court, the setup used often caused significant feedback between the court where the coroner sat, those dialling in and those assisting the courtroom. Our experience is that there is a significant disparity between the approaches of different Courts and Tribunals in what they are/are not able to do electronically and we would welcome a more consistent approach moving forward. Finally, it appears that virtual proceedings tend to take longer than in person hearings.

Question 2 - What is the impact of virtual proceedings on (1) litigants, (2) lawyers? What support is available to them and what is required?

  1. This response is focused predominately on the impact on lawyers, however, where relevant we have noted our experiences about the impact we have seen on litigants.

 

  1. Hearing cases virtually is likely to have a greater impact on litigants in person rather than lawyers, due to lawyers having more familiarity with the Court and Tribunal process. There is however an impact on law firms where administrative issues lead to hearings being relisted and this then results in legal firms incurring multiple fees (for example, when instructing Counsel). Virtual proceedings can also impact on a lawyer’s ability to engage with Counsel and/or witnesses during hearings although we understand that some virtual platforms enable representatives of the same party to discuss issues in private virtual rooms which is helpful (provided it is sufficiently secure). Additionally, it is more difficult for lawyers to pick up on nuances in the witness evidence which would tend to be more apparent if hearings were held in person.

 

  1. The fact that different IT systems/software is used in different Courts and Tribunals impacts on both litigants and lawyers, as it requires a good understanding of multiple virtual platforms and for all parties to be able to access and use different software programmes.

 

  1. The fact that different approaches have been taken across the Court system in relation to the receiving of bundles (for example, the Coroners Court were not accepting hard copy bundles, whilst the High Court were) has also had an impact on lawyers, due to the need to either create a hard copy bundle while working from home with limited facilities or create a virtual bundle.

 

  1. There has also been an impact on lawyers and litigants in that more time, thought and collaboration between the parties seems to be needed to disclose documents and create bundles ahead of the hearing. As such, we would suggest that directions questionnaires should be adapted to specify preferred methods of communication, and whether parties require technical support and/or assistance. Furthermore, given the impacts identified above, all parties would benefit from more easily accessible, clear guidance as to the virtual proceedings process. In addition, litigants and lawyers need sufficient IT support to allow them to become familiar with and readily access the platforms that they are required to use.

Question 3 - What are the implications of virtual proceedings for: (1) access to justice, (2) participation in and fairness of proceedings, (3) transparency and media reporting, (4) adversarial vs inquisitorial styles of proceeding?

  1. (1) There may be greater implications for (particularly unrepresented) Claimants due to the possibility of them not bringing claims because they feel overwhelmed or daunted by virtual proceedings (perhaps because they are not confident with the technology or the fact that there is limited or no in-person engagement). Furthermore, individuals may feel unsafe going to the Court or Tribunal in person, particularly if they have an underlying health condition and that this could deter them from bringing claims and therefore deny them access to justice. 

 

  1. (2) Virtual hearings could make it more difficult for disabled individuals to properly participate. Participation and fairness may also be affected because cross-examination may also be less effective in a virtual hearing and it may be more difficult to read witnesses.

 

  1. (3) Transparency and media reporting should not be affected as virtual proceedings should still be available for anyone to view provided virtual listings with login details are readily available to all and technology is in place to ensure that proceedings are unaffected by third party attendance.

 

  1. (4) There may be a reluctance to be too adversarial in a virtual setting and therefore, advocates are likely to adopt more of an inquisitorial style when asking questions. It is possible that Counsel will tread more carefully around Claimants in virtual cross examination.

Question 4 - What difference, if any, might virtual proceedings make to the outcomes of cases?

  1. There should not be much (if any) impact on the outcome of cases. However, there is an argument that a party who is technologically better equipped may stand a better chance of winning their case. There may be more appeals from litigants in person in relation to virtual proceedings if they fail to win their case. Finally, it may take longer for the outcome of a case to be determined. Our experience is that virtual hearings are much slower than in person hearings so there may only be time for evidence to be given and submissions heard, leaving an outcome to be provided at a later date in writing.

Question 5 - What further research or data are required in order to understand the impact of virtual proceedings?

  1. It would be useful to gain an understanding of the real life experiences of Judges, Claimants, Respondents, barristers and witnesses who have been involved in a virtual hearing. Research could be conducted immediately after hearings, to help determine whether those who participated in the hearing felt that it was effective. Further, it would be helpful to conduct some research to understand whether those who are participating in virtual hearings have the relevant equipment and services to do so.

Question 6 - Are the IT systems in the courts fit for purpose to support virtual proceedings?

  1. IT systems require improvement and a more consistent approach in relation to IT would be welcomed. As expected, there were a number of teething problems with IT at the start of the Covid-19 outbreak but a lot of the problems that were encountered initially have since been resolved. However, some problems with the IT systems still remain. For example, emails have bounced back due to file size and there have been connection and/or bandwith issues with the hearings that have gone ahead.

Question 7 - Are certain types of case more/less suitable for virtual proceedings? If so, which ones?

  1. Virtual proceedings are only going to be effective if both parties are happy to proceed in that way. However, case management hearings, preliminary hearings and judicial mediations are all suitable for virtual proceedings. Furthermore, cases with relatively short listings where the legal and factual issues are clear and the evidence is straightforward (such as unlawful deduction from wages and unfair dismissal claims, small claims proceedings and application hearings) should also suitable for virtual proceedings. With regards to the High Court, trespasser and possession hearings are very quickly and easily conducted online.  Claims that require little or no cross examination are also likely to be suitable for virtual proceedings. Cases that involve a litigant in person have been more challenging to conduct online and complex hearings are less suitable to be heard virtually.

Question 8 - Should virtual court proceedings continue after the end of social distancing? If so, for what types of proceedings? If so, how might they be used to extend, rather than just maintain, access to justice?

  1. All case management hearings should be dealt with virtually going forward, as well as small claims and application hearings where there is agreement to proceed on a virtual basis. If some substantive hearings can also be conducted virtually after the end of social distancing, this will be a more effective use of Court and Tribunal time. However, it is important that all parties are happy to proceed in this way so that no party feels like their access to justice has been curtailed or denied.

Progress of cases

Question 15 - What types of case are proceeding, both physically and virtually, during lockdown? What types of case are not making progress and what are the implications of that?

  1. In the main most cases have proceeded in some form during lockdown although more complex cases have had hearings adjourned. Delays may impact witness evidence (in terms of witness recollection and availability). The cases that have proceeded have progressed slowly and  there have been delays, for example in receiving new claims and listings for future hearings. There are also some cases that have been put on hold (for example fare evasion claims which are considered to be non-urgent) which will inevitably create a backlog of claims to be heard.

Question 16 - What types of case should be prioritised during the pandemic?

  1. The following cases should be prioritised:
    1. Injunctions and other urgent applications;
    2. Abuse of process claims
    3. Claims with shorter limitation periods (judicial review, personal injury etc.);
    4. Claims where parties would be unduly prejudiced by not having a hearing during the pandemic; and
    5. Cases that have been outstanding for a long time