By Anastasios Tsanakas, Associate Lawyer at Dionysiou & Partners LLC
Numerous Jurisdictions, including the Republic of Cyprus have decided as part of their measures for the prevention of Covid 19 transmission, the suspension of Court operations. Nevertheless and for obvious reasons there can be no universal lockdown to the administration of justice.
A possible solution to the imposed restrictions that inhibit justice accessibility is the development and establishment of “e-trials”.
In the UK, an entire trial is being conducted over Skype in a legal first that lawyers say could be a model way to ensure court business continues during the Covid-19 pandemic.
The Judge, is asked to decide whether it is in the best interests of a 70 years old man that suffered a major stroke in 2016 to have the clinically assisted nutrition and hydration he receives through a tube, withdrawn. The patient’s daughter and GP disagree over his treatment and the local clinical commissioning group has asked the court to determine the course to take.
In the three-day hearing, the judge, lawyers, 11 witnesses, three experts and two journalists, joined the hearing online through Skype for Business, which enables everyone to see and hear those taking part, as well as allowing the hearing to be recorded. The judge decided that the hearing should be conducted over Skype to enable it to proceed without risking the health of any of the participants, some of whom are in vulnerable groups or live with people who are.
At the end of the first day, the barrister representing the man’s GP, stated: ‘It was very effective, and allowed for full and fair participation by all parties, using a laptop from their home or office’. And continued: ‘It’s a necessary step – it’s important for the rule of law to ensure the courts continue to function during this crisis.’ In similar terms the barrister representing the clinical commissioning group stated: ‘It could be used as a model to keep the system going, keep justice accessible and to alleviate the anxiety of parties who otherwise might have to wait a long time for hearings to take place in court.’
Sharing the above view, the lord chief justice said that both the civil and family courts could move to telephone and video hearings. ‘Any legal impediments will be dealt with.’ On the criminal courts, he said: ‘Particular problems are likely to be encountered in both the magistrates’ courts and the Crown courts, to which careful thought is being given.’
The ”e-trial” proposal seems to gain momentum during the Covid-19 pandemic. Another case, this time a multi-party commercial trial relating to over $500m, could be heard entirely online and streamed on YouTube as a result of the coronavirus lockdown.
The ‘substantial multi-party litigation’ was originally scheduled to last seven days in London’s commercial court and numerous factual and foreign law expert witnesses were due to be called before travel restrictions were imposed.
The case will now be heard remotely, with preparations being made to allow barristers, solicitors and the judge to work from home. The judge gave short shrift to the argument that there would likely be insurmountable logistical and technical difficulties and concluded that the court must adopt an ‘optimistic, rather than a pessimistic, attitude’.
In addition, he acknowledged the possibility that technical issues may arise, and that counsel may contract the virus and be unable to appear for a number of days. Nonetheless, he said that a remote hearing should be arranged, and that these risks should be addressed if and when they materialise.
Parties have agreed to set up a ‘virtual court room’ in the form of a video conference in which participants can see and hear each other. They are also organising ‘virtual Post-it notes’ and ‘virtual break-out rooms’ to allow legal teams and clients to discuss the trial as it proceeds. The trial will be recorded and streamed, potentially via YouTube, so that journalists and members of the public can follow the proceedings.
The above cases illustrate that the approach in favor of “e-trials” seems to become widely accepted especially where there can be no solid estimation on the duration of the suspension of Court operations. Of course, several technical problems will be faced but advanced technological applications and the unparallel need for administration of justice dictate that every effective alternative solution must be seriously taken into account.