knowledge 15 February 2021 |

COVID-19: Commercial Court Directs Fully Remote Witness Hearing Under New Statutory Powers

Part III of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 was commenced in August 2020.  It deals with changes to the conduct of civil proceedings and makes a number of important reforms.  For example, section 11 sets out a statutory basis for the courts to conduct remote hearings in civil proceedings.  This applies to proceedings brought before on or after the commencement of that section.

Under section 11(2), the court can direct that any specific set of proceedings before it should proceed remotely.  This can be on the application of the parties or on the court’s own initiative.  Participation in a remote hearing can be from a location within or outside of Ireland.

In the recent case of IBRC v Browne,¹ the Commercial Court has made this type of order on its own initiative directing a fully remote hearing of the trial in that case.  In doing so, O’Moore J rejected a submission that section 11 could not be used to order the remote hearing of a witness action. 

Referring to his own recent experience and that of judicial colleagues, O’Moore J also rejected concerns about the court’s ability to assess the credibility of witness evidence given remotely or that witness evidence given outside of a court setting could be subject to unseen interference.  He directed that each witness should give evidence from a venue to be approved by the court, in the presence of attendees who were either agreed by the parties or determined by the court.  He was satisfied with the suitability this process even in the face of foreseeable “significant challenges” to the witness evidence from both sides. 

The court was also asked to consider whether both the public and the parties could see and have confidence in the court process, if conducted remotely.  O’Moore J had no concerns here pointing to the efficacy of the technology and also to the fact that the parties and their solicitors could be physically present in the courtroom as observers if they wished.

He was similarly unconvinced by arguments that liaison between counsel and their support team would be difficult during a remote hearing though he proposed hourly breaks during the course of the evidence to facilitate this. 

Finally, he rejected a submission that as the case was not urgent, it could not proceed under the terms of a Covid-19 notice issued by the President of the High Court.  He pointed out that non-urgent remote hearings are permitted under that notice.  The issue was not whether this was an urgent case but rather whether it was a case that could properly be done remotely.

O’Moore J said that the court had a “wide discretion” under section 11(2) and he set out some of the factors that he had taken into account in making the order here.

• The Commercial List is a case managed list, in which the court is entitled and expected to take an active role in the advancement of the proceedings;

• This trial would run for six weeks.  The court’s limited resources had been deployed to ensure that it would be heard now.  If the hearing dates could broadly be held by having a remote trial, then this should be explored regardless of whether the parties took the initiative in doing so;

• This action began over a decade ago.  Four previous trial dates had been abandoned for various reasons.  It was in the public interest that the proceedings should be concluded at this stage.

However, he cautioned that while these reasons made it appropriate to raise the possibility of a remote hearing, they did not in themselves mean that such a hearing could or should be ordered.

He said that before ordering a remote hearing, the court must consider whether this would be unfair to any party or would otherwise be contrary to the interests of justice.  He was satisfied that this would not arise here as all parties would be subject to the same procedures.  He pointed out that if this subsequently became an issue, the order could be revoked.

Looking beyond the parties, he said that although an order for a remote hearing might be fair to them, it might still be contrary to the interests of justice.  For example, the interests of justice might not be served by a trial which, because it was conducted remotely, did not take place in public or where the press were excluded.  While the public could not attend this trial, it was nonetheless being conducted in the open and the interests of the public could be met by the reporting of the hearing by the press. 

Comment

This decision represents a significant evolution in the courts’ response to the pandemic and the necessity to hear cases remotely.  In general, a year ago, the prospect of taking witness evidence in a virtual format was unthinkable, now it is expected. 

Solutions have been found to constitutional concerns in relation to the requirement that justice be administered in public.  Some of these are addressed by the technology where public gallery functions enable the press and public to access a hearing, if required.

The decision in this case also shows the willingness of the Irish superior courts to deal with new challenges and embrace the new technology, once appropriate safeguards are met. 

It is important also to note that the changes introduced by the 2020 Act will outlast the current pandemic and along with other proposed reforms to the civil justice system should herald greater efficiency and lower costs for commercial litigation in Ireland on an ongoing basis.