Lord Chief Justice sets out default position for hearings in civil and family cases, issues outline guidance to judges

The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely, the Lord Chief Justice has said in a message to judges in the civil and family courts about the impact of the coronavirus.

Lord Burnett said: “That will not always be possible. Sensible precautions should be taken when people attend a hearing. They are now well-known. We all take them when out of the home. There will be bumps along the road as we all get used to new ways of working forced on us the biggest public health emergency the world has faced for a century.”

Many more procedural matters may be resolved on paper within the rules, the LCJ said.

In the statement, which can be viewed here, Lord Burnett told judges: “You will all have been following the detail of the government’s advice and the science on which it is based. It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months.

“For that reason we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned.”

The LCJ said he would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.

Earlier in the statement Lord Burnett said judges had an obligation to continue with the work of the courts as a vital public service, just as others in the public sector and in the private sector are doing. “But as I have said before, it will not be business as usual.”

He said the judiciary were making arrangements to include those working in the courts within the scope of key workers who would be able to continue to send their children to schools, following yesterday’s announcement by the government.

The LCJ said the rules in both the civil and family courts were flexible enough to enable telephone and video hearings “of almost everything” and that any legal impediments would be dealt with. HMCTS are working urgently on expanding the availability of technology but in the meantime judges had phones, some video facilities and Skype, he said.

Lord Burnett said detailed guidance on how to sustain the administration of justice would be overtaken by developments very quickly. However, he said Designated Civil Judges and Designated Family Judges should work with operational staff and listing staff to establish priorities and to consider how hearings can continue to take place as safely as possible.

He also provided some outline guidance on:

• Social distancing
• Litigants in person
• Trials and hearings involving live evidence
• Prioritising work
• Civil Aspects: possession proceedings; injunctions and committal hearings; civil appeals.

In relation to family matters Lord Burnett said the President of the Family Division would be providing a more detailed document to assist judges sitting in the Family Court.