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Access to justice: Remote hearings – the new normal?

Access to justice: Remote hearings – the new normal?

By Chirag Patel

Access to Justice COVID-19 

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In the wake of COVID-19, the courts have become adept at conducting hearings online. However, Chirag Patel believes their future use should be limited to ensure access to justice is not compromised. 

Snapshot
  • There has been a sharp increase in remote hearings due to COVID-19. 
  • While there are undoubtedly advantages, now and in the future online courts should be limited to administrative type hearings and not be extended to contested hearings.
  • There is a risk of setting a dangerous precedent which could affect true access to justice through deterioration of quality of witnesses’ evidence, especially when credibility is in issue, and for those who have communication difficulties, ultimately representing an erosion of rights.

Time for change? 

There have been compelling arguments, well before the chaos of COVID-19, favouring a shift towards increased digitisation of courts, including online hearings, in keeping with modern times. Professor Richard Susskind, one of the most vocal advocates in this field, has long argued for this transformation and even argues all courts in the future ought to be completely digitised.

An article in The Guardian UK in early 20172 applauded the Federal Court of Australia for being a global leader in its vision and management of digitised court documents. It advocated for a shift towards online justice, stating that it is faster, easier and more accessible, helping more people with reduced costs. It lamented that some jurisdictions were lagging behind the e-court revolution. 

Legal database giant LexisNexis weighed up the pros and cons of online dispute resolution in Australia in the wake of COVID-19.3 In favour is delivery of more efficient, safer, faster, affordable and continual access to justice. It can remove barriers like geographical isolation and lack of transport options or mobility. Many of these factors can reasonably apply to most types of online hearings too. 

These examples present a strong argument that digital platforms provide access to justice for those plaintiffs who would otherwise be unable or reluctant to bring claims or defendants to defend claims. There are indeed many advantages of such a transition in favour of greater use of online models, convenience being one of them, especially to courts that otherwise face even bigger backlogs and greater delays due to COVID-19. 

Before we overzealously accede to justice being seen to be done in the name of flexibility, forward-thinking and convenience, we must give the real-life impact of a completely online justice system careful consideration. 

Are the digital scales of justice too blind? 

As LexisNexis observes, there are potential disadvantages. One key problem is the risk to confidentiality when using digital applications. How do we reconcile issues surrounding privacy, especially during legally privileged online conversations between client and lawyer? It’s all well and good conducting hearings remotely using platforms like Teams and Zoom, but what thought has been given to the risks of online hackers? Such concerns would never exist during contested hearings in traditional court buildings. 

There are also the obvious disadvantages for those who either do not have access to, or do not know how to use a computer or the internet, let alone navigate online platforms. These factors must not be overlooked as they could risk erosion of access to justice. 

Arguments in favour of asynchronous hearings take the risk further. This flexible approach may work for technical arguments on law, with parties emailing their arguments for a judge to consider “on the papers”, but extending it to contested hearings could present a concerning shift from our revered adversarial system to a less favourable inquisitorial one. 

Another argument in favour of online hearings is a higher likelihood of litigants in person (LIPs) who save costs instructing lawyers and are therefore more likely to pursue a claim they otherwise may not have been able to. While this may be true, we ought to consider the impact of unrepresented LIPs unwittingly causing greater delay in proceedings by raising incorrect causes or irrelevant issues. In contrast, lawyers narrow the issues and facilitate more streamlined hearings. Additionally, LIPs would not have the benefit of independent legal advice. So the question remains: would they really be getting proper access to justice? 

Putting LIPs who are articulate enough to advance or defend their own cases to one side, what about those with language or communication barriers? How would they truly have greater access to justice through online forums? This would be exacerbated if there was a further shift towards written submissions and asynchronous proceedings. 

Are we at risk of losing the human touch? 

It’s not just LIPs who stand to suffer from online contested hearings. Vulnerable witnesses, those with language or other communication difficulties, and individuals with limited access to the resources necessary to participate remotely, are prime examples providing judges with the difficult task of identifying and adjusting for parties’ individual vulnerabilities or difficulties. The risk is we lose the human touch. 

This has been observed within the family law context in the UK. The High Court of Justice (England and Wales) Family Division President Sir Andrew McFarlane asked the Nuffield Family Justice Observatory (NFJO) to conduct a rapid consultation of how court users were experiencing online family hearings to ensure only suitable cases would proceed remotely. 

NFJO head Lisa Harker commented that most parents and children are being failed during remote hearings, stating they are not “just or humane”.4 Practitioners interviewed for this report also expressed concern. Two judges commented on the issues they perceived during remote hearings: 

  • “There is no opportunity to look them in the eye, to convey to them your own humanity, to either encourage or warn – all of which I consider to be a vital part of the initial stages of a care case.” 
  • “Remote hearings are impersonal and transactional rather than humane.”

Generally, remote hearings can present difficulties for advocates and judges in building rapport with parties. There is less engagement, lack of proper eye contact, and more difficulty reading body language. Such absence of human insight and empathy cannot be overlooked. 

In a recent ruling,6 Perram J commented that there will be many cases where trials conducted over virtual platforms will not be feasible. For example, he doubted someone speaking no English and in immigration detention could have a fair trial. 

How does a client properly instruct their lawyer during online contested hearings? Using chat functions or breakout rooms within online platforms is not ideal. How likely is counsel in full flow through submissions to notice a small alert popping up on screen from their client? What if the instructions the client wishes to give cannot wait until set breakout periods? This only detracts from the fluidity of proceedings. 

In an interview7 with Wendy Harris QC, Supreme Court of Victoria Chief Justice Anne Ferguson gave an example of being able to appreciate counsel physically present pausing because they are thinking, yet when there is a pause online, it’s not easy to tell if they are thinking or if there’s another reason. Although the Chief Justice is an advocate for online hearings, she recognises there are limitations. 

Larger hearings will be unworkable due to the sheer number of participants. Imagine a multi-party trial with four plaintiffs, four defendants, their lawyers, expert witnesses, interpreters, judge and court associate – all appearing remotely. What about jury trials – throwing another handful of lay individuals into the “online” mix. How will judges police jurors’ attention and/or engagement? Do we reduce the number of jurors? How can that represent true access to justice? 

Most significantly, the weight accorded to witnesses’ credibility when giving evidence cannot properly be adjudicated through a screen. Many cases rest solely on credibility. Giving evidence over a link diminishes the quality of witnesses’ evidence. A proper determination on the facts cannot faithfully be done via a screen or telephone. 

When control-alt-delete just won’t work 

While there is appetite for a shift towards greater use of remote courts, the infrastructure within court buildings in Victoria (and worldwide) to enable seamless online resolutions to disputes isn’t attuned to it yet. Chief Justice Ferguson, in the statement of 20 March, acknowledges “not all Courts have technical capability yet”.

Referring to the quality of advocates’ submissions during the interview,9 Chief Justice Ferguson stated “it’s not the technology that wins or loses you cases. It’s your core skill”. However, technology can fail. 

A rapid review examining the impact of remote hearings in the UK civil justice system reported, regarding the use of technology, nearly half of hearings experienced technical difficulties.10 Can we really rely solely on technology to provide justice? Of course, the counter-argument is that things will improve with time and the odd glitch is no different to parties arriving late to court because of transport issues. However, this mustn’t be viewed in isolation. 

 There are also concerns surrounding the amount of time parties spend in front of screens, especially during lengthy hearings, causing eye strain, headaches, and increased tiredness due to greater concentration. For lawyers, there’s the added pressure of needing to communicate with clients, managing documents, and making submissions in a less natural way. While these concerns can be allayed by regular breaks, the impact of screen time shouldn’t be understated. Frequent breaks mean more disruption to the flow of a hearing and ultimately a lengthier hearing than if conducted in person. Similarly, people dropping out at crucial times due to technology failures causes disruptions and delays. 

Vehicle for permanent change – the new normal 

The Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 give courts flexibility to do what is necessary to “facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”11 including, where appropriate, dispensing with compliance with any of the requirements of the rules,12 giving any direction or imposing any term or condition “for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination”.13 

The law, therefore, already inherently provides a window to bring about wholesale change in the way hearings can be conducted in future. While this hasn’t happened yet, (for example, Magistrates’ Courts are still adjourning contested hearings), the door appears to be firmly open. 

The Magistrates’ Court of Victoria (Civil Division) Practice Direction 1 2020, signed by the Chief Magistrate on 23 March 2020 stated they saw these measures as temporary and all contested hearings will be adjourned.14 Yet, this was revoked and replaced by Practice Direction 12 on 8 May 202015 with no longer mention of “temporary measures”. There was absence in any explicit statement that contested hearings would be adjourned. This indicates that change is about to, and in fact, has happened, I believe. 

The risk is this could extend to contested hearings. Judges could apply an interests of justice test and determine that videoconferencing facilities are to be preferred, having regard to the overarching obligations16 and need for minimising delay or costs savings. Those interests could change over time and become normalised. 

In a statement on e-Court pilots,17 Chief Justice Ferguson envisages technology will be “scaled up to meet the changing needs of the sector”. Similarly, Chief Justice Tom Bathurst of the Supreme Court of New South Wales stated, “the shift to a remote system of justice was not without its technical challenges, yet I am confident we are getting better each day, and I see an innovative and flexible future ahead”.18 

However, court-wide implementation of robust, reliable and secure digital technology is likely in itself to be a very costly exercise – arguably more than adjourning for a month or two for parties to physically attend.

Conclusion

These are clear signs of intent to expand these measures beyond the current COVID-19 restrictions. But, where do we draw the line? Should remote hearings proceed through every aspect of civil procedure? Even if the law allowed this and the technology had full capability, the more fundamental question is, should it? 

Despite the move towards greater remote hearings during an unprecedented pandemic, there is a reason why these have not previously been extended to substantive matters – we risk sub-standard justice and should be wary about giving our express support for such measures initially being introduced on a temporary basis for reasons of practicality. These measures may well remain on the books post COVID-19 when we will have plenty of time to repent our enthusiasm for efficiency. 

While there are benefits to online hearings, I believe they should only be used in procedural or case management type hearings and should not extend to contested hearings. The risk of prejudice to parties, deterioration to the quality of justice and erosion of the rule of law is just too high. ■


Chirag Patel is a UK solicitor gaining cross-qualification in Victoria. He is partner at MW Solicitors in England and practises in criminal defence and extradition law. He is living in Melbourne, maintaining his UK practice through remote working.

  1. See, eg, Susskind R, Online Courts and the Future of Justice, Oxford University Press 2019, p8 or Harvard Law School Centre on the Legal Profession Virtual Book talk with Richard Susskind, 24 April 2020, https://youtu.be/QOS4LRf-zes
  2. Louise Tickle, “Online Justice: why courts should explore emerging digital possibilities”, The Guardian (online, 16 January 2017), https://www.theguardian.com/public-leaders-network/2017/jan/16/online-justice-courts-explore-digital-possibilities
  3. LexisNexis, “When You Can’t Meet in Court: Pros and Cons of Online Dispute Resolution”, https://www.lexisnexis.com.au/en/COVID19/blogs-and-articles/when-you-cant-meet-in-court-online-alternative-dispute-resolution-during-coronavirus-covid19
  4. Louise Tickle: "Lisa Harker: 'Remote family court hearings are not just or humane'’’, The Guardian (online, 2 June 2020), https://www.theguardian.com/society/2020/jun/02/lisa-harker-family-court-hearings-justice-failed-coronavirus-crisis?CMP=Share_iOSApp_Other.
  5. Nuffield Family Justice Observatory, Remote Hearings in the Family Justice System: A Rapid Response, p10, https://www.nuffieldfjo.org.uk/app/nuffield/files-module/local/documents/nfjo_remote_hearings_20200507-2-.pdf
  6. Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486, https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0486
  7. In Conversation with the Hon Anne Ferguson, Chief Justice of the Supreme Court of Victoria and Wendy Harris QC, 7 May 2020.
  8. Statement from the Chief Justice of Victoria (COVID-19) Magistrates’ Court of Victoria. 20 March 2020, https://www.mcv.vic.gov.au/news-and-resources/news/statement-chief-justice-victoria-covid-19-20-march
  9. Note 7 above.
  10. Civil Justice Council/The Legal Education Foundation, "The Impact of COVID-19 measures on the Civil Justice System", May 2020, p36, https://www.judiciary.uk/wp-content/uploads/2020/06/CJC-Rapid-Review-Final-Report-f.pdf 
  11. Civil Procedure Act 2010, s1(1)(c). 
  12. Supreme Court (General Civil Procedure) Rules 2015, Rule 2.04. 
  13. Note 12 above, Rules 1.14 & 34.01.
  14. The Magistrates’ Court of Victoria (Civil Division), Practice Direction 1 2020, 23 March 2020, https://www.mcv.vic.gov.au/sites/default/files/2020-03/Practice%20Direction%20No.%201%20of%202020%20-%20COVID-19%20Civil%20Jurisdiction_0.pdf. 
  15. The Magistrates’ Court of Victoria (Civil Division), Practice Direction 12 2020. 8 May 2020, https://www.mcv.vic.gov.au/sites/default/files/2020-05/Practice%20Direction%20No.%2012%20of%202020%20-%20Civil%20Jurisdiction.pdf
  16. Note 11 above, Part 2.3. 
  17. Statement from the Chief Justice of Victoria: Supreme Court of Victoria. 20 March 2020, https://www.supremecourt.vic.gov.au/news/statement-from-the-chief-justice-of-victoria-COVID-19-update-2
  18. New South Wales Bar Association COVID-19: Information for attending court, p4 (updated 16 June 2020), https://nswbar.asn.au/uploads/pdf-documents/COVID_Court_Guide.pdf.

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Arbitration for Family Law Practitioners
Tuesday 30 March 2021
9:30am-12:45pm

CPD type – PS

The LIV, in collaboration with Australian Institute of Family Law Arbitrators and Mediators (AIFLAM), presents this practical workshop. Facilitators Martin Bartfeld QC and O’Sullivan Davies partner and AIFLAM chair Andrew Davies will cover basic procedures and practical steps to help you assist clients effectively and efficiently.

 

 
 
 

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In this highly practical session, Margaret Harrison of Aged Care and Elder Advice will take a deep-dive into retirement village and aged care contracts, consider the financial considerations of each and provide you with the information needed to practice effectively.  

Recent Developments in Elder Law video examines recent interpretations of the Guardianship and Administration Act 2019 and provides insights into the Office of the Public Advocate’s new Future Planning Resources and how to use them in your practice. It also looks at the criminalisation of elder abuse in other Australian states, the current state of aged care in Victoria and more.


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