[update 19 March. This Message from the Lord Chief Justice to judges in the Civil and Family Courts has been sent out and published this morning. It emphasises the need to move to phone and video hearings wherever possible and to make arrangements to support social distancing. On possession cases and block lists, it says:
Possession Proceedings
It is likely that the emergency legislation will affect this area of work. But it is obvious that particular sensitivity is needed irrespective of that. Applications to suspend warrants of possession should be prioritized.
Block listing of possession claims is inappropriate at this time because it would be difficult to maintain appropriate social distancing.
Judges dealing with any possession claim during the crisis must have in mind the public health guidance and should not make an order that risks impacting on public health.
How this works out, we will have to see.]
As of today, 18 March 2020, the official guidance for the civil courts and tribunals in respect of the coronavirus is:
As long as you, or the people who are coming to court with you, do not have confirmed or possible coronavirus (COVID-19) infection or do not need to self-isolate in line with NHS advice, you should continue to use courts and tribunals as usual.
If you do have symptoms or are self-isolating then
you should contact the court or tribunal in which the hearing is due to take place. You can find contact details on Courts and Tribunals Finder.
(You are permitted a hollow and slightly despairing laugh at the idea of contacting the average county court in this way).
What this means in practice is a complete mockery of the government’s advice to all of us to practice social distancing, work from home, avoid gatherings of people and avoid use of public transport.
Possession lists have been carrying on, with say 30 cases on the list. Waiting rooms filled with 50 people, all of whom have got there on (sometimes lengthy) trips on public transport.
A duty possession scheme solicitor may see 15 clients, hurriedly. If there is time to wash hands between clients, court’s washrooms are apparently often out of soap. No hand sanitiser is available unless you bring it yourself (for it to be bare-handled by security on the way in) because HMCTS have determined it is not essential:
We want to be responsible in making sure that, given the shortage of hand sanitiser, we do not introduce its use where it is not necessary in a way which might reduce the supply where it is essential.
Regular court users and staff – solicitors, barristers, court staff ushers and security, and of course judges – are being routinely exposed to a degree of risk that the government has advised (and may shortly enforce) should be avoided by the public FOR THE PUBLIC GOOD.
Parties to cases or witnesses may well not turn up – whether because self-isolating, or quite reasonably concerned about the risks of travelling and crowds of strangers in an enclosed space.
Worse still, parties to cases, particularly those in person – say the tenants facing a possession claim – may feel they have no option but to attend (particularly if they’ve tried to call the court…) despite having symptoms.
Hearings and trials cannot simply proceed as if nothing is happening that might get in the way, and without any regard to the risks to the participants and staff (and of course to all they they are later in contact with).
Crown Court jury trials of more than 3 days have now all been postponed. In Scotland the Housing and Property Chamber has adjourned all hearings from 18 March until notionally 28 May. The Court of Protection is adjourning some maters and looking at increasing telephone and video based hearings. But the county courts continue to insist on as many people in an enclosed space as possible.
Lawyers have perhaps been slow to protest this. It might surprise non-lawyer readers, but by and large, turning up and getting things done, no matter what – personal illness, personal circumstances are usually put aside for the demands of the case and the court. The law comes first. And we – perhaps foolishly – pride ourselves on living up to that.
This may be the mentality affecting the senior judiciary and court service on this issue. But this is not about ‘carrying on regardless’, it is not primarily about the health and well being of the lawyers or judges (though it is that too), it is about a situation where we are being told and have to believe that gatherings of people and use of public transport presents a publc health risk.
I don’t profess to have easy answers. Certainly a lot of hearings could plausibly be done by phone conference (or video conference if HMCTS would be able to abandon the outdated technology and very limited facilities available in the civil courts), but trials would be much harder – and there is the principle of open justice to observe. These things may take a bit of thought, a bit of time and a bit of investment.
But in the meantime – maybe for a month or so – is it not time that all hearings requiring attendance at court are either adjourned, or where possible, changed to phone conferences (save for very urgent matters)?. Not just for the good of court staff, judges and lawyers, or of parties and witnesses, but for the good of us all?
(And now the schools are closing on Friday, and it is heavily rumoured that London will be in a strict lockdown. The courts cannot just carry on as if it was business as usual, just with a bit cleaner hands.)
(Update. HMCTS has just published this – Guidance HMCTS telephone and video hearings during coronavirus outbreak.
This basically amounts to ‘we’re having a look at it’, together with:
we have also activated Skype for Business on all staff and judicial laptops. This change took effect today (18 March) and work is underway to train staff and judges as quickly as possible, as well as testing the technology to ensure it works for user.
Skype for Business is being killed by Microsoft on 31 July 2021. Adopting an obsolete technology with less than 18 months of operational life left is… less than encouraging.)