It has been widely applauded for its depth considering it has been research and produced in an exceptionally short space of time.
On publication of Rapid Review: The Impact of COVID-19 on the Civil Justice System, the Master of the Rolls Sir Terence Etherton described it as an “astonishing effort by all involved”. The urgency of the work meant that the exercise was carried out at great speed.
But its findings are troubling in some respects. For instance, the high rate of adjournments brought about by the pandemic was raised repeatedly as a concern by professional court users; and almost half of all hearings experienced technical difficulties.
Sir Terence, chair of the independent Civil Justice Council, launched the review on 1 May. It ended on 15 May during which time it attracted 1,077 responses from court users – primarily professionals. The review was primarily aimed at court users whose hearings took place between 1 May and 7 May 2020.
The lead researcher was Dr Natalie Byrom, Director of Research at the Legal Education Foundation. She said: “The volume of responses reflects a wide recognition of the importance of understanding the impact of covid-19 on the justice system and supporting the judiciary and court service in their efforts to ensure that hearings are able to take place.”
In response to the report, Sir Terence Etherton said it provides a “valuable snapshot of the effect of the pandemic on civil court users relatively soon after the pandemic began”. He said he hopes it will form a useful basis for further research and review and says the Civil Justice Council will “consider carefully” its recommendations.
It is reassuring for all that there was much praise from respondees for the judiciary for the steps they have taken to ensure that the justice system continues to operate.
Key concerns and recommendations
The report recommends immediate steps which can be taken to build on existing practice and ensure that remote hearings support access to justice.
Housing possession claims: In relation to the report’s recommendations, Sir Terence singled out the concerns of consultees about the consequences of the current stay on housing possession claims ending. He said “a cross-sector working group” has been established to help address these concerns.
Data use: The report highlights “systemic deficiencies” in the information currently available on the operation of the civil justice system. “There is a vital need”, says Byrom, “to invest in robust systems for capturing data in order to review the operation of the civil justice system and build the evidence base for effective practice. Improving the data that is collected is vital to make the voices of litigants in person and lay users of the justice system heard.”
Lay people and litigants in person (LIPs): The experiences of non-professionals involved in remote hearings such as LIPs were (unsurprisingly) a matter of concern. An urgent priority identified by the report “relates to the need to understand the experience of non-professional court users, particularly those who are considered vulnerable under existing law and practice directions, those with protected characteristics and those who are litigants in person”.
Anecdotal evidence received in the responses included that a lack of communication from court staff prior to hearings and a decline in the amount of administrative support available at court during covid-19 was impacting disproportionately on lay parties and LIPs, causing anxiety and distress.
There are also concerns that many lay clients and LIPs would be unable to access the technology and necessary resources to participate in remote hearings effectively (known as ‘digital inequality’); challenges around creating and submitting e-bundles; and barriers to effective participation in remote hearings because of communication issues.
Also highlighted is the “combination of restricted access to legal advice due to COVID-19 and difficulties with navigating unfamiliar technology alongside unfamiliar legal processes compounded pre-existing practical and emotional barriers to effective participation”.
The report warns that these problems experienced by lay users and LIPs are likely to be amplified if remote hearings are expanded at scale to deal with matters more likely to involve vulnerable parties and LIPs.
Information and evaluation: There appears to be an urgent need for thorough evaluation of remote hearings to improve the quality and quantity of data and information available about how the civil justice system operates. Those responding suggested recommendations relating to both the management information collected and published by HMCTS and primary legal information (listings, case documents and judgments).
Among other things, this includes a cost-benefit analysis to explore the impact of remote hearings on the costs of accessing the justice system; and research into the impact of remote hearings on judicial wellbeing and experience of hearings.
Wellbeing: On the wellbeing issue, the report says a priority is to investigate findings relating to the fatigue created by remote hearings for professional users. It recommends: “The impact of remote hearings on judicial health and wellbeing should be studied, and recommendations in relation to breaks, optimal technological and working set-up and maximum hearing duration developed in accordance with this evidence.”
Open justice: Open justice and transparency remain vital to maintain public integrity and trust in the justice system notwithstanding the pandemic. Respondents were concerned about the impact of remote hearings on the number of hearings conducted in private and the report recommends that data on the number of applications made for privacy orders, and the number of hearings conducted in private should be collected.
So what of the future? It is still early days and we’re only just passed the starting block, but there’s much to consider. No doubt a further review will happen after a short interval.
But practitioners would do well to note the report’s accompanying documents observe that: “Overall, the sense was that those litigants in the greatest need could be made even more vulnerable by a post-Covid abandonment of face-to-face legal assistance.”