COVID-19: Remote courts are here to stay
In a series of articles last year, we explored the development of remote courts in Ireland as a result of the pandemic. Twelve months on, it seems that remote courts are here to stay. In this update, we address the recent decisions and legislation which have reinforced and expanded the use of remote courts and we consider what the future might hold.
Part III of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 was commenced in August 2020 (the Act). The Act introduced a number of important reforms to deal with the challenges brought about by the pandemic. Section 11 of the Act provides a statutory basis for the courts to conduct remote hearings in civil proceedings, provided that such hearings are in the interests of justice and not unfair to any party.
Importantly, the Act allows the courts to specify what technology is to be used in remote hearings. Effectively this means that parties will not be obliged to use the platform favoured by the Court Service, Pexip. The Act opens up the possibility of other more sophisticated third party providers being utilised. It is understood that parties will be responsible for discharging the costs of any technology that they propose in the alternative to Pexip.
The Act also envisages that hearings involving witness evidence may be conducted remotely and clarifies that participants in a remote hearing need not be located in Ireland. This is a significant development and should facilitate the provision of evidence by fact and expert witnesses who may be based outside of Ireland.
The powers in the Act had not been utilised by the judiciary until recently, when the Commercial Court in IBRC v Browne1, ordered that the case be heard remotely using the video conferencing platform TrialView, despite objections from the defendant.
The Commercial Court made the order on its own initiative and rejected a submission that the powers conferred under the Act should not be utilised in cases involving witness evidence. Justice O'Moore also rejected the defendant's argument that the case should not proceed having regard to the High Court Notice, which the defendant argued specified that only urgent cases should proceed during level five restrictions.
Justice O'Moore interpreted the Notice to mean that while urgent applications can be made in person, non-urgent applications can proceed remotely and that the question to be asked was whether the case could be properly conducted remotely.
The High Court also directed that that the only way in which a trial in Arklow Shipping Unlimited Company & Others v Drogheda Port Company DAC2 could go ahead was through the use of the video conferencing platform, TrialView. Justice McDonald rejected the defendant's request for a part remote, part physical hybrid trial. He referred to his recent positive experiences of remote hearings, commenting that they ran very smoothly and that TrialView provided clear and uninterrupted communications between all parties.
These recent decisions signal a strong desire from the judiciary to hear cases in the Superior Courts remotely. As remarked by Justice McDonald, the business of the courts should not be prevented from going forward during Covid-19 where there is now technology that allows cases to take place in a completely satisfactory way.
Modernisation of the Courts Service
This increased adoption of remote hearings by the judiciary aligns with the recent announcement by the Courts Service that it will create a further 50 remote courts in 2021. This news emerged as the Courts Service's Corporate Strategic Plan 2021-2023 (the Plan) was put before the Oireachtas.
The Plan is the first part of the Courts Service's ten-year Modernisation Programme, which aims to bring new technology and modern ways of working to the administration of justice, making access to justice easier, and better responding to the needs of court users.
The expansion of the Courts Service’s online filing system "CSOL" to allow parties to remotely file court documents without the necessity to attend court offices would be a very welcome development of the Modernisation Programme. There is no doubt that an online filing process would be a more time and resource efficient process and would align with the Court Service's objective to bring new modern ways of working to the administration of justice.
The road ahead
Certain cases which are more suited to physical hearings will return to courtrooms, when it is safe to do so. However, it is hoped that routine case management may be dealt with remotely after the pandemic.
Both court users and practitioners have certainly experienced the benefits of the efficiency associated with remote hearings and further expansion of remote court services will help deliver on the objective of improving access to justice for all in a modern, digital Ireland.
1 Irish Bank Resolution Corporation Ltd (In Special Liquidation) v Thomas Browne  IEHC 83
2 Arklow Shipping Unlimited Company & Ors v Drogheda Port Company DAC 2019/3711 P
For more information on this please contact Ciarán O'Conluain, Denise Daly Byrne, Rebecca McGrath or your usual contact on the Litigation & Dispute Resolution team.
Date published: 23 March 2021