Figure 1.There are concerns that online courts create difficulties in assessing the credibility over the video and in building a rapport with participants. Source: Unsplash
The pandemic has undoubtedly shaken our perception of normality and has proven that new and innovative ways - previously considered impractical – can be found to realise things. Just a year ago, the notion of remote court hearings was not largely perceptible. Yet, here we are, one year into the COVID-19 restrictions and online hearings via Zoom (or other apps) have been established as the norm.
According to Remote Courts Worldwide, approximately 56 countries had their courts up and running in a virtual environment by July 2020. Many of these countries were able to rapidly put in place new set of rules and procedures to allow the smooth running of the court hearings. For example, in the England and Wales a new “Protocol Regarding Remote Hearings” was issued on March 20, 2020 which gives further guidance on the forms of remote technology to be used. Furthermore, German Arbitration Institute (DIS) advised its beneficiaries to submit any action via email instead of paper, which would be transmitted into a paper form in the main office in Bonn. In Hong Kong, the Chief Justice of the Court of Final Appeal has considered expanding the scope of virtual hearings to include not only urgent hearings, but also non-urgent matters. And these are just only few of the many examples of how countries have responded rapidly and efficiently to the challenge of keeping the courts services afloat.
Remote hearings, as it can been seen from their practice, have a number of key benefits. Firstly, they can be cost-effective, particularly for a party in a lawsuit who lives abroad. For example, a businessman in Italy, who has a hearing at London Court of International Arbitration, will not need to get themselves through the often time-consuming procedure of getting a UK visa or bare other costs associated with their travel.
Figure 2. Bangladesh issued and ordinance for virtual court proceedings. Source: Daily Sun.
Secondly, remote hearings are, arguably, more accessible. In the case of a disabled person who challenges the decision of the Department of Wealth and Pension in the UK national court, the only things required to attend the hearing are a reliable internet connection, a quite place and a computer.
Nevertheless, despite their benefits, there still remains some level of skepticism and criticism in relation to the sustainability of such hearings.
One may think that remote courts guarantee a faster judicial process and no backlog in cases. However, this seems to be true only for certain courts. and more specifically family courts, which have proven to be more successful in the ‘implementation’ of video hearings. This can also be assumed from the UK president of the Family Devision, Sir Andrew McFarlane’s description of the development in remote family courts as ‘surprising’. The same cannot be said about commercial courts. In fact, according to Jeff Chapman, barrister at Fountain Court Chambers, ‘things take longer and delays are increasing’ , making it difficult to get trial dates for commercial litigation cases. Such disparity is also because of the increase in commercial litigation during the pandemic and fewer judges.
Figure 3. Since the start of the pandemic in early 2020 about 56 countries switched to online hearings. Source: Unsplash.
Another challenge with virtual courts is the various types of IT issues. There have been many cases where the online family court hearing was delayed because the judge could not reach the solicitor’s phone due to a mobile phone fault. Such technological issues also question the accessibility benefits of digital courts. There are many elderly people who do not know how to properly use a device (i.e., laptop, desktop computer, or a tablet, etc.) or a software, or in some occasions they do not even have internet access.
Additionally, there are concerns that online courts create difficulties in assessing the credibility over the video and in building a rapport with participants. The video hearings seem to be more tiring and exhausting, particularly when there are issues with internet connection. The security of data is also questionable.
There is no doubt that remote courts have had a positive impact on ensuring that legal procedures across the world take place normally, even with some difficulties such as IT issues, or in the adaptation to the new way of court processes. Although lawyers and judges are keen to be returning to the traditional - face-to face hearings soon, remote courts are likely to remain even after the social distancing rules are lifted. That being said, there may be a hybrid way of handling the cases - certain cases may be heard virtually, whereas, others, for instance complex fraud or criminal cases, may be given the preference of physical hearings.
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