The President of the UK Supreme Court, Lord Reed of Allermuir, has recently given evidence to the House of Lords constitution committee as part of an annual review. He gave his view on the proposed name-change for the Supreme Court to the ‘Upper Court of Appeal’, that being that it would be perceived as a downgrade to the prestige of the Court from an international perspective. He considered that the notion that the current name of the UK’s court leads to it behaving like the US Supreme Court was ‘simply idiotic’.

As well as these views, Lord Reed stated that as restrictions begin to ease following lockdown across the jurisdiction, the Court was keen to carry on using electronic bundles. He specified a strong preference to reverting to physical hearings in the Supreme Court as soon as possible, because ‘they do work better’ and ‘the whole experience is much more spontaneous and interactive than it becomes online’.

Compounding Lord Reed’s preference for in-person hearings is the recent message from the Lord Chief Justice, Lord Burnett of Maldon regarding Courts’ recovery. The Courts have been hearing over 20,000 remote hearings per week, compared with c.550 in March 2020 – a rise of 4000%. Lord Burnett stating that during the three national lockdowns that have been in effect since March 2020, ‘we have seen that technology has many advantages but, in some circumstances, it can also have the effect of slowing down work.’ He stated that over the coming weeks and months, it would be possible and desirable to increase attendance in person where it is safe and in the interests of justice.

In person hearings, he stated, were important to maximise the throughput of work. Lord Burnett stressed that remote and hybrid hearings would still ‘play their part in managing footfall’, and stressed that all attendance at court must be conducted in a Covid-secure manner, and in line with current guidance. He stated that the rise in attended hearings will coincide with the increasing number of people who are being vaccinated against Covid-19.

The decision of Bilta (UK) Ltd & Ors v SVS Securities Plc & Ors [2021] EWHC 36 (Ch) was handed down by Mr Justice Marcus Smith in January 2021, as the third (and current) national lockdown had just begun. The Judge refused an application to adjourn the trial date due to reluctance on the part of a number of the applicant’s witnesses and the inability (for medical reasons) of a further witness, to attend court in person, during Tier 4-level restrictions in London.

In his judgment, Smith J summarised the approach which the Courts have been adopting throughout the pandemic at paragraph [14], stating that the general rule of thumb was that, ‘interlocutory hearings and other hearings not involving witnesses can, and [..] should, in light of the present prevailing circumstances, be heard remotely.’ However, in actions involving witnesses, whose live evidence needs to be heard and tested via cross-examination, in-person hearings were more likely to be held by the Judge to be more suitable, even if all the parties expressed opposition to an attended hearing and a desire for a remote hearing. Whilst a consensus on that question was a ‘very powerful factor’, it was nevertheless ‘not determinative’.

Smith J cited with approval the non-exhaustive list of ten factors which the Court of Appeal considered to be pertinent in deciding whether a remote hearing would be ordered, in Re: A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583. These included the likely duration of the hearing, whether the parties were legally represented, whether the case would be submissions-based, or one in which evidence needed to be heard, and ‘the experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology.’ As to the lattermost-quoted factor, this raises the prospect that over time, as familiarity with the technological platforms being used increases amongst legal professionals and the judiciary, that the usage of remote hearings will become more commonplace.

In sum, the Courts will continue to be circumspect in decision-making as to whether remote or in-person hearings are the most appropriate. The traditional, in person hearing is favoured by senior members of the judiciary for various reasons, and the number of such hearings is scheduled to rise over the coming months as the population becomes increasingly vaccinated. Remoet hearings are very much here to stay, as is the digital technology which has enabled such hearings to take place and which has facilitated the ongoing administration of justice.