A New Era of Online Hearings During a Pandemic

Since the outbreak of the COVID-19 pandemic, most countries have imposed a lockdown or some form of a Movement Control Order (MCO) to curb the spread of the disease. As a consequence, most industries have been forced to re-think the way they operate.

Prior to the pandemic, it is almost unimaginable for lawyers to be “working from home”. Some of the pertinent questions lawyers would ask include “how do I speak to and meet clients?”, “how do I prepare my bundles?” and most importantly, “how can I conduct trials and hearing from home?”.

This pandemic has made one thing clear, it’s about time for the legal profession to embrace technology and move towards a new era of working remotely.

This was exactly the position taken by the High Court of England and Wales in the recent case of Re Blackfairs Ltd (in liquidation) [2020] EWHC 845. The Court explored the necessity of a remote trial involving internet-based video communication platforms and electronic bundles in the wake of the COVID-19 pandemic.

In that case, the Applicants (Joint Liquidators) applied to adjourn a trial which was due to take place over 5 weeks in June 2020. The application was premised on the restrictions or the ‘lockdown’ introduced by the UK Government to deal with COVID-19.

The Respondent opposed the application and claimed that the Applicants had lost faith in their case and used the pandemic to delay the trial. The Judge was satisfied that the application was made due to real concerns of whether a trial can take place safely and not for tactical reasons. However, the Judge refused to adjourn the trial but instead directed  parties to explore ways to conduct the trial remotely.

In response, the Applicants raised 4 arguments. Firstly, to proceed with the trial would be inconsistent with the Prime Minister’s instruction to stay home except for very limited purposes. Second, the trial would expose the participants to unacceptable risk to their health and safety. Next, the technology challenge posed by a five-week trial was untested. Lastly, there is a real risk of unfairness or potential unfairness in conducting a remote trial. The Judge addressed these arguments below.

Alleged inconsistency with Government Instructions

The argument that the trial will be contrary to the government’s instructions is misplaced. The Prime Minister’s instruction which was enacted into the Coronavirus Act 2020 (the “Act”) contained provisions empowering the courts and tribunals to use video and audio technology during the ‘lockdown’ period.

To illustrate, live links are used in criminal proceedings whereas in civil proceedings, public participation are conducted remotely by video or audio technology. This is in line with the Coronavirus, Restriction (England) Regulations (the “Regulations”) 2020 by the Health Protection where “…no person may leave the place where they are living without reasonable excuse”. Reasonable excuse does include to fulfil a legal obligation or to participate in legal proceedings.

The protocol regarding Remote Hearings provides as follows:-

“The current pandemic necessitates the use of remote hearing whenever possible. This protocol applies to hearing of all kinds, including trials. It should be applied flexibly.”

The protocol includes appropriate remote communication methods such as Skype for Business, court video link, an ordinary telephone call and Zoom. Therefore, the legislature, protocols and regulations send a very clear message that courts are expected to continue their function safely by means of using technology during the lockdown period.

The potential health and safety risk

The Appellants argued that there is an unacceptable risk to health and safety in proceeding with a trial. Furthermore, two or three participants for the trial fall into ‘vulnerable persons’ as defined in the Regulations.

The adjournment was refused for a few reasons. First, the trial is not due to start until the week commencing 08.06.2020 and the government would review whether the restrictions should continue or not. Second, there is little evidence to support the alleged difficulties participants may have. In any event, arrangements can be made to mitigate these difficulties.

The technological challenge

The Applicants claimed that there is no tried and tested technology which can adequately facilitate a remote trial with participants in different locations. The Respondent drew from his own experience and argued that some participants may need access to multiple screens. One for documents, one for the video/audio link, and one for the transcript of the questions and answers.

The Judge held there have been at least two examples of fully remote trials taking place since 16.03.2020. The first case was a 3-day trial conducted over Skype, where evidence from 11 witnesses and 3 experts were taken. Arrangements were made for the witness to give evidence from a different location where the internet connection was more reliable compared to their individual homes. The second case involved 4 witnesses including 2 experts giving evidence remotely through Zoom and parties had hard copy bundles rather than e-bundles.

Some of the technical difficulties include that lawyers, witnesses and judge(s) on some occasion were out of sync caused by broadband connection and bandwidth. However, this can be remedied by witnesses traveling to lawyers’ office with IT staff to assist rather than to dial in from home.

Potential unfairness

Lastly, the argument of potential unfairness was addressed by the Respondents that in the following manner: any unfairness would apply to both sides equally. The Judge also noted that it is not essential to have all the parties be in the same physical space.

Remote Court Proceedings in Malaysia

So, how is our country dealing with such challenges? Recently, the Court of Appeal conducted a landmark hearing remotely and the same was made available for public viewing.

Clearly, the Judiciary is committed to embrace and adapt modern technological advancement to achieve justice. This coincides with the Chief Justice’s press release dated 17.04.2020 stating that the Courts will still be operational during the MCO period.

For criminal matters, the Courts are still hearing remand applications conducted at police stations, fresh charges, criminal applications, revision of Subordinate Court decisions and regular case managements.  For civil cases, the Courts continue to carry out case managements via E-review, e-mails and Skype video conferencing.

Documents and cause papers are still accepted for filing for both criminal and civil matters via the E-filing system. Parties can also opt to have hearing for urgent matters to be done via video conferencing. The Courts are also hearing some interlocutory applications via Skype or emails. There is a clear shift in into a new era of conducting online trials and hearings for civil cases.

The Judiciary has also taken steps to amend relevant statutes such as Courts Judicature Act 1964, Subordinate Courts Acts 1948 and Rules of the Federal Court 1995 to give effect to conducting hearings remotely. Pending these amendments, the Judiciary has committed to this move to conducting online hearings by issuing a Practice Directions on the same. This is done to ensure the continuity of access to justice where it is not brought to a halt in light of the MCO restrictions.

On 24.04.2020, the Judiciary issued further press statement which provides list of matters that can be heard online starting from the 04.05.2020 and setting out the procedures for the same. However, this list is non-exhaustive and subject to the Court’s discretion as to suitability of these application to be heard via online hearing.

For a start, the unopposed interlocutory applications which will be heard remotely are inter alia, as follows:-

1. Applications to amend pleadings/cause papers;
2. Applications for extension of time;
3. Applications for Ad Interim Injunctions (ex-parte);
4. Setting Aside applications;
5. Application for leave for commence execution proceedings;
6. Application for leave to commence Judicial Review;
7. Application to discharge a bankruptcy under Section 33 of the Insolvency Act 1967;
8. An application for leave to deal with property/assets by a Bankrupt under Section 8 of the Insolvency Act 1967;
9. Application for sanction from the Director-General under Section 38(1) of the Insolvency Act 1967;
10. Application to annul bankruptcy under Section 105 of the Insolvency Act 1967;
11. Application under Section 116 of the Companies Act 2016 – reduction in share capital; and
12. Application for stay or termination of the winding-up of a company;

All ex-parte and inter-partes application filed with a certificate of urgency can also be heard online. The Courts are also having online hearings for contested interlocutory applications which are short and uncomplicated and appeals to the Judge in Chambers. However, this can still be subject to the parties’ agreement.

The Judiciary’s move above was recently discussed in SS Precast Sdn Bhd v Serba Dinamik Group Bhd [2020] 1 LNS 316.  The issue is whether the Courts still have the power to conduct online hearing in the event one party is not agreeable to the same. The High Court held that to deny a party from the online hearing is in essence depriving the party the fundamental right of access to justice as enshrined in Article 5(1) of the Federal Constitution.

Furthermore, the Court has the power to give any directions for the conduct of the matter pursuant to Order 32 of the Rules of Court 2012. This power are given to the Courts to ensure and protect the ‘overriding interest of justice’ consistent with the right of access to justice.

It is refreshing to see the legal profession shifting into a modern era of conducting online trials and hearings. It is clear to see that in both Malaysia and UK that justice should remain accessible despite any MCO restrictions.

Anyone out of law school would know the saying “justice delayed is justice denied”. It is time we fully put that into practice and embrace technological advancement during the MCO period. Stay safe and see you in online court!