knowledge 9 April 2020 |

COVID-19: The Courts Go Online

On 31 March last, the Chief Justice and the Presidents of each court jurisdiction released a statement detailing the measures already adopted to ensure the continuance of essential elements of the administration of justice during the COVID-19 pandemic but also to plan for the future.

In this statement, they indicated that ICT infrastructure was being put in place to facilitate remote court hearings which nonetheless comply with the constitutional obligation that justice be administered in public.

This requirement is set out in Article 34.1 of the Constitution and is recognised as being a “fundamental constitutional value of great importance”. Deviations from this requirement are only permissible in “special and limited cases as may be prescribed by law” or under the common law power of the court to regulate its own proceedings when certain strict criteria are met and only to the minimum extent necessary.¹ The limited legislative intervention here in the past has tended to focus on particular areas meriting special consideration such as family law, criminal asset seizure or the protection of business secrets and confidential information. Notwithstanding the current crisis, it is clear that a wholesale removal of court business from the public domain would be constitutionally problematic.

As the judiciary have recognised, the solution lies in technology and the introduction of online court hearings. However, it remains to be seen how remote court hearings will operate in Ireland. It may be that the parties will convene remotely with the proceedings streamed to a particular courtroom. It has been suggested that, where it is considered necessary, individual judges may allow members of the press to be present in otherwise empty courtrooms to ensure that the constitutional obligation to administer justice in public is complied with.

Trials of the ICT are underway and the judiciary have indicated that it may soon be possible for the courts to pilot remote hearings, where they are suitable and where they can be conducted in a manner which is fair and where the parties and their representatives can comply with all relevant Government guidance and direction in relation to the containment of COVID-19. A start date close to the beginning of the new legal term on 20th April 2020 has been suggested.  Further guidance is awaited.

In the UK, where there is also a general requirement of open justice though without any similar constitutional imperative, there has been legislative intervention to facilitate the broadcasting of remote hearings during the current pandemic. Remote hearings are already successfully underway in that jurisdiction. For example, in the recent case of National Bank of Kazakhstan v The Bank of New York Mellon a virtual trial took place over a number of days through the use of videoconferencing technology. Changes introduced by the Coronavirus Act 2020 made it possible to livestream the proceedings to the parties and a small number of others to comply with public access requirements of the UK courts and to the public on the internet. Transcripts of the proceedings were provided online.

The statement from the Irish judiciary suggests that a similar model may be under consideration in an Irish context but this remains unclear in the short term. What is clear is that the administration of justice must continue to function, in particular for urgent matters, during the current crisis. While travel restrictions and social distancing remain, a solution rooted in technology may be the only realistic way forward.

How can we help?

The Disputes Group at McCann FitzGerald can assist organisations in addressing their concerns in and around a wide range of regulatory and litigation issues business may face in responding to COVID-19. Alternatively, your usual contact in McCann FitzGerald will be pleased to provide further information.