The commercial courts

The commercial courts in England and Wales have received global recognition for their response to the COVID-19 crisis. There has been a series of legislation, practice directions and laws passed urgently to enable the more efficient and effective management of justice whilst working remotely. It is hoped that the progress made in using technology to drive efficiency will be embraced well beyond the end of the pandemic.

In a statement on 1 July 2020 the Lord Chancellor, Robert Buckland QC MP said:

‘It is possible to make this recovery a renewal for justice in our country. Getting it right could mean a system that not only emerges intact from this crisis, but is fundamentally more efficient, more dynamic and more resilient – a smarter system for a different future, which is good news for all who use our courts.’

Key themes to improve efficiency and introduce more long-term technological solutions to administering justice were also discussed and promoted by senior members of the judiciary and other business leaders during the online Tech Nation debate on 6 July 2020, namely:

  1. The ability of the courts to resume 85% to 90% of normal business by use of remote hearings (both by telephone and video).
  2. The effectiveness of on-line hearings – able to administer justice whilst saving time and cost.
  3. The desirability for a more flexible and technology based approach.
  4. The possibility of future hybrid hearings and/or a triage type system for commercial hearings.

The court is a service for the public (rather than a physical place) and the guidance that has been implemented on an emergency basis, with the right investment, could drive the future of the court system forward. The Lord Chancellor acknowledges that we can seize the opportunities presented in the last few months and, with new investment, build a more effective and efficient system.

The changes encompassed in commercial practice are not limited to the courtroom – there has been a significant increased use in video mediations for highly complex and technical commercial disputes.

The technology is now so advanced that the mediator can conduct a plenary session and put the parties into separate breakout rooms for confidential discussions, enabling the parties to liaise as they would in the normal face to face setting. Video mediations also save costs and travel time and, in so doing, furthers the parties’ commercial objectives.

These recent, significant steps have transformed the court system into a cutting edge, modern process demonstrating its resilience and ability to adapt, whilst furthering the overriding objective of the courts to deal with cases justly and at proportionate cost. There will be substantial investment to drive forward technological platforms and it is anticipated that there will be an increased use of video hearings.

That is not to say that physical hearings will go completely out of fashion. It may be appropriate in certain circumstances, particularly where one party objects to a remote hearing, for the parties to meet face to face. This may be particularly relevant to litigants in person who would prefer to have a physical presence in court and see the parties before them. The court, we believe, will always make those allowances but in the future, we may see that, particularly for more interim applications and procedural issues, there will be a focus on remote hearings and/or more written submissions submitted by email.

In most commercial matters, remote hearings often administer justice as effectively as in person, whilst providing a more efficient forum. During the Tech Nation debate, it was recognised that the biggest challenges to the modernisation of the legal system are practising professionals with a dislike of change and building trust in the new system for the public. However, it has proven successful over the last 6 months at a time of crisis and uncertainty. Therefore, this new system is capable of continuing to grow into a first rate, world leading provider of technological legal services, operating remotely whilst upholding the rule of law and the administration of justice.

It is refreshing to see the judiciary’s recognition of the commerciality of utilising court services and the court’s constant strive to improve its services. The courts are now data collecting to enhance the court users experience.

Access to justice

A key aim of the move to accelerate the “ digitisation of our court system” is to improve access to justice.

Many individuals and business owners have credible and valid claims that they just don’t pursue, as they have insufficient funds available to do so. A good example of this is the many debts left unpursued. This impacts not only the individual and/or business, but also the wider economy.

Kennedys are already well advanced in their technological services (and Kennedys IQ have recently created a bespoke debt collection platform to help clients manage their debt) and our own commercial disputes team deals with complex debt recovery and enforcement. On the whole, Kennedys fully supports a move towards greater efficiency that provides a positive client experience, whether they choose an option that is in person or remote.

The criminal courts

Access to justice is a key element that needs to be tackled, not just in our civil courts, but also in our criminal courts, and in particular to ensure compliance with Human Rights.

In August 2020, Judge Keith Raynor at Woolwich Crown Court refused to further extend the custody time limit for a teenager who had been held in prison waiting for his trial, saying the government had “failed to organise its legal system to allow the Courts to comply with Human Rights Law by ensuring that trials of defendants remanded in custody are dealt with in a reasonable time”.

Judge Raynor said “He is innocent until proven guilty – that is at the forefront of my mind”. Yet, more than 43,000 cases are awaiting trial in the Crown Court, an increase from 37,500 before the lockdown imposed by COVID-19.

Comment

The quicker that some of the lessons learnt in the civil courts can be translated to the criminal courts, the better – albeit accepting that this will be more difficult, given the need for jury trials.

 

Words by Kennedys Law