Remote hearings may steer parties away from settling

Remote hearings may make parties less willing to settle, Mr Justice David Barniville of the High Court has said.

When parties are not actually in a physical court, the default position may be against a decision to settle, he observed, since the proceedings may seem less real for being conducted remotely.

Mr Justice David Barniville of the High Court was speaking at the Law Society litigation seminar yesterday (29 October).

“There is a further issue of whether remote hearings impact on the respect for the court, or the dignity of the court,” he continued.

“Do some people treat remote hearings differently, than if they turned up and saw all the trappings of the court, the harp and so on?

“I think it probably is the case that some people do treat it less seriously, perhaps not necessarily those who are accustomed to litigation,” the High Court judge said.

Credibility

He said that remote hearings are also more difficult where issues of credibility are in play, as in some witness cases.

He added that there is less possibility of interrupting counsel in remote hearings, and less personal interaction.

“That’s something that is to be regretted,” Mr Justice Barniville said.

And remote hearings will have an impact on the training of solicitors and barristers, with those starting off in the legal profession having less real-life court experience.

"We probably have to be conscious of all of that," he said.

Advocates must also tailor their performance to the remote hearing, since it is not the same as a physical court, he observed, with a greater focus on paperwork and written submissions.

Mr Justice David Barniville told the seminar that cases which had been relisted are now likely to be adjourned as a result of new level five restrictions.

Mr Justice Barniville, who is in charge of the commercial division of the High Court, now conducts remote hearings from his chambers while his registrar sits in court.

The judge said huge back-up work had been done by solicitors to ensure motions can still go ahead under COVID-19 restrictions, in terms of filing hard and soft copies of documents.

“The new procedures have been embraced very well by practitioners,” he said.

Workload

“Work which otherwise would not have been possible, has been possible,” he continued.

Consequently, the ‘savaging’ of other areas of practice has not actually hit the commercial side as badly, he said, with registrars taking up much of the workload.

Mr Justice Barniville said the recent FBD case had worked well, having been run on a hybrid basis, with some remote participants, and using a gallery view system.

“Judges in the commercial list have received some training in the use of some of these platforms and are very willing and very open to using them,” he said.

“It’s inevitable that other platforms will have to be permitted, either paid for by the parties, or ultimately provided by the Courts Service,” he continued.

However, it will be a number of months before a wider menu of platforms is publicly available.

Other jurisdictions use platforms such as Zoom, MS Teams and Skype.

Hybrid

“I think the future is going to be part-remote, part-physical – so-called hybrid hearings,” he said, pointing out that closing submissions don’t necessarily have to be done in court.

Remote hearings are not suitable in criminal cases, however, and throw up issues about the public administration of justice.

There is now provision for bona fide members of the media to link into remote hearings, which has worked well, he said.

Travel

Questions about streaming of court hearings will also become relevant.

He questioned the view that remote hearings were more expensive, given that they avoided the need for people to travel to court, or to travel from abroad.

“Ultimately, court hearings may be seen to be somewhat cheaper or, perhaps, no more expensive,” the High Court judge predicted.