On the 20th April, the Law Society Gazette.ie reported that the Supreme Court was due to pilot remote court technology for a short case management hearing. A statement from the Chief Justice in relation to the conduct of court business is available here. COVID 19 is fundamentally impacting all levels of Irish administrative society and the Courts Service is no different. It would be beneficial to look to other jurisdictions that have implemented remote hearings or tribunals.
Writing in LinkedIn, Tricia Sheehy Skeffington B.L. gives the barrister’s view and re-iterates the principle of audi alteram partem or the right to be heard being a hallmark of due process. The infrastructure that will be put in place will also need to be cognisant of the constitutional obligation that justice be administered in public where appropriate.
The UK Experience
A practice direction has been in existence in the UK allowing for telephone conference hearings, case management hearings and interim applications for some time. The Family Court has also utilised several platforms to allow for various stakeholders to be included in proceedings. It appears that the most popular application is Skype for Business by virtue of the fact that this program is included in the suite of software provided to judges on Court-issued laptops. Christopher Sharp QC recently offered a practitioner’s perspective on the use of technology within the judicial process in the UK. In the first instance, this writer would agree that the use of new technology exposes problematic security issues inherent in all programs and merit serious investigation. This article also drew attention to the ‘smorgasbord’ of platforms being used by different stakeholders.
Mr Justice David Barniville, sitting in the High Court with his registrar, recently presided over several commercial court hearings and reported that they had “worked fine”. Each of the cases involved just two parties, and the papers were filed with the judge prior to the remote hearing. The barristers involved were each in different locations, as were the solicitors.
The Irish Courts Service has acknowledged that this new technology is being introduced without the benefit of extensive user testing. 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. It is therefore imperative that the views of the practitioner are sought out and considered.
Some observations that may assist the Irish Court Service include that directions are sought at the earliest stage (after securing permission from the Court) setting out the rules of the hearing. Pre-hearing test runs are deemed invaluable in ironing out any potential glitches. Each party should, where possible, always have their own IT support on site and available. It may be appropriate to have sperate electronic communication channels available within each team for “virtual gown-tugging” and client instruction. It would also be very important that all electronic pleadings and discovery (e-filings and e-briefs) are fully searchable.
Upholding the Rule of Law
COVID 19 challenges the physical presence model of courtrooms[i] as a place to administer justice; other solutions are required. These solutions, however, need to be cognisant of the public’s confidence in the new system and the ability of the court’s current infrastructure and administrative culture to absorb the new technical and organisational measures. Special consideration should also be given to the reporting of such remote sessions which will allow for more transparency as to the content of proceedings, especially where court reporters cannot move from open court to open court.
In British Columbia, the Civil Resolution Tribunal (CRT) has been in existence since 2016 and has remained open while courtrooms across the world have been forced to close. There has been significant buy-in from the relevant stakeholders into this free, anonymous, and confidential application process. Evidence is uploaded and where an oral hearing is required disputes are ventilated via Skype. Prior to the COVID 19 outbreak most the CRT staff worked remotely and while judgments have been paused to a date after May 1st the tribunal did not suffer the same shuttering fate as the traditional courtroom and continues to operate.
The administration of justice is a vital public service, never more so in times of crisis. Even the biggest obstacles faced by the administration of justice may be overcome by consultation with all stakeholders, by observing best practice from similar initiatives around the world and with a high regard to IT security and privacy. In Ireland, the opportunity now exists to re-define and modernise the service
For more discussion any of the issues above contact David Whelan at firstname.lastname@example.org