The (first) New Practice Direction: A Pilot Scheme for All
Among the monsoon of protocols on remote working, a Pilot Practice Direction (“PD”) has emerged. Pilot PD 51Y is entitled “Video or Audio Hearings During Coronavirus Pandemic”. This is not a formal rule change; it is a pilot scheme made under Civil Procedure Rules part 51. This part permits modification or disapplication of any CPR rule for the purpose of a pilot scheme.
We are all in a pilot scheme now. The key provisions:
Private or public: where a court directs proceedings to be conducted entirely as video or audio proceedings and it’s not practicable for the hearing to be broadcast in a court building, the court has the discretion to direct that the hearing will be in private. This discretion is exercisable where the court considers it necessary to make such an order to secure the proper administration of justice. This is a broad discretion. It is feared that court users, struggling with the technology, will simply resort to declaring most proceedings private. The below provisions relating to media should, however, fetter the court’s discretion.
Media: where a media representative can access proceedings remotely, they shall be public proceedings. Where this is possible, it will not be necessary to make an order that the proceedings be “private”. In short, a court does not have the power to hold a private hearing where arrangements can be made to ensure the media has access. This will impose a burden on the court to make efforts to ensure the media can access hearings.
In practice, it should be difficult not to hold public proceedings. Remote conferencing software such as Zoom and Lifesize can be accessed with a URL link and a password. As an example, in Zoom, when one clicks “invite” a pop-up appears. In the bottom left, a “copy url” button appears. Courts may begin posting URLs to lists with passwords to enter the call. Courts may also use conventional e-mails or even Twitter to send out URLs as they appear. For those fearing unruly participants in a call, Judges hosting the call will have the capacity to “mute” parties or simply remove them from calls. The PD further stipulates that “any person” can request recordings of hearings conducted remotely.
Recordings: where a hearing is held in private, it must be recorded “where that is practicable” in a manner directed by the Court. The court may (if authorised under the Crime and Courts Act 2013 section 32, or the Courts Act 2003 section 85A) direct a hearing is video recorded. Otherwise, most calls must be audio recorded.
It is difficult to believe, when surrounded by so much technology, that it will ever be impracticable to record calls. Most remote conferencing software – Zoom, Teams etc – offer this functionality. A judge sat in a court room can use a tape to record. BT telephone conferencing can record. At worst, smartphones can record akin to a Dictaphone. A difficulty anticipated which such a direction is the storage of such recordings. A video recording of a day’s hearing will take up significant storage space on a firm or court’s servers. The parties would be well advised to ensure the hearing is recorded and by whom it is being recorded.
As an aside, powers to order that hearings be recorded and subsequently broadcast as they apply to higher courts are expected to apply more generally through a new section 85A of the Courts Act 2003, which it is believed the Coronavirus Bill 2020 will introduce.
Time limited: the pilot scheme will remain in force for no longer than the life of the Coronavirus Bill (after it is enacted).
It is anticipated that a whole suite of pilot PDs will be released in due course, with particular emphasis on directions relating to possession claims and further directions concerning extensions of time for parties to comply with conventional time limits.
In response to the escalating Coronavirus crisis, Matthew, other barristers in Chambers and staff are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19.