Tim Buley QC shares his thoughts on the public law courts during the coronavirus crisis

Tim Buley

Like many other areas of public service, the picture in terms of how the courts will operate during the coronavirus crisis remains unclear and subject to change. This news post aims to give a snapshot of the picture that is emerging at the date of writing (19 March 2020).

  • At the date of writing the Administrative Court and Upper Tribunal are continuing to list cases for hearing in the normal way on the court service website on the day before the hearing. Anecdotally, it appears that parties are being contacted by the court service and invited to agree to telephone hearings and / or adjournments, but some hearings are going ahead. For example, there were oral permission hearings in court on 19 March which went ahead despite a request from one party to have a telephone hearing. This is understandable in the short term but it is unclear what would be the consequence of refusing to agree, or if parties disagree, and it is desirable that some clear guidance is given.
  • On 18 March, the Administrative Court office said that it was operating “business as usual” in line with government guidelines, but it is unclear whether that reflects the most recent government announcements.
  • The court has indicated that the QBD (including the Admin Court) are working on contingency plans, for approval by the President of the QBD.
  • On 19 March, the Lord Chief Justice issued guidance to civil and family courts which emphasises the need for the administration of justice to continue so far as possible and envisages greater use of video and telephone hearings. The statement is available here.
  • The Admin court has published a notice on 19 March indicating a change of service in terms of “back office” arrangements. Details can be found in this notice. Subject to that, at the date of writing claims should be issued, and other documents filed, in the usual way and subject to the usual time limits. There is no current suggestion of permitting of electronic filing where that is not already possible.
  • The Senior President of Tribunals has also published guidance on the approach to be adopted by Tribunal judges. This can be found here.
  • The President of the Special Immigration Appeals Commission has indicated that she does not expect it to be possible for CLOSED hearings to take place and is looking to adjourn such hearings. She envisages that OPEN hearings could in principle take place via the use of technology but the inevitable link with the CLOSED hearing may make this impossible in practice.
  • The Coronavirus Bill was published today, 19 March, and is expected to complete all of its Parliamentary, and become an Act, by the end of March. The bill is available here. Clause 53 gives effect to Schedule 24, which makes provision for increased use of video and audio hearings by giving the court power to direct that a hearing shall proceed “wholly as video hearings” or “wholly as audio hearings” (para 1 Schedule 24 for courts, para 2 for equivalent powers for the First-tier and Upper Tribunals).
Thus whilst the position remains unclear, it seems to be envisaged that the courts will continue as best they can using video and audio hearings where possible. These are likely to become the default. In many public law cases, the use of such hearings, or at least video hearings, is less problematic than it would be in cases where there is a need for live evidence. The use of such hearings will inevitably raise challenging questions about how the discretion to permit or direct such hearings is to be exercised, which will have to be compared with possible alternatives of proceeding with a face to face hearing (with obvious health risks) or adjourning (with delay to justice). All four options (face to face, video, audio, adjournment) have their downsides, though if resources are available it is not clear why any hearing should proceed as an audio hearing where a video hearing is possible, at least where the issue is substantive rather than case management. The problems will be most acute where a matter is urgent, for example concerning housing, deportation, access to welfare support or detention. But even leaving aside urgent cases there appears to be a commendable preference on the part of the court service to continue the court’s business where possible. TIM BULEY QC

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