The coronavirus outbreak has already had an impact on the conduct of legal business around the world. In Milan, Northern Italy, where a particularly large cluster of infections has occurred, at least ten law firms have shut their offices.
This follows earlier closures by major law firms in mainland China, where the outbreak originated, and Hong Kong and other Far Eastern territories. Although Baker McKenzie has now reopened its London office, further closures in the City as the epidemic spreads globally seem inevitable.
Last week the International Bar Association (IBA) postponed two conferences which were due to take place in Tokyo amid fears over the risk of international travel and the risk of contagion inherent in large gatherings of delegates from around the world. This week the London Book Fair was cancelled, and the same fate has befallen legal conferences due to take place in coming months.
The University of Law has suspended all face-to-face teaching at its Hong Kong campus. As with other responses first seen in the Far East, we are likely to see similar responses over here in due course. But while office staff can work from home by adopting ‘smart working’ procedures and teaching can be conducted remotely, the conduct of litigation may be more problematic.
Traditional courts require the attendance of litigants or, at the very least, the lawyers representing them. Often other parties such as witnesses are required to attend, as well as court staff and, of course, the judge. But in recent years an increasing number of civil hearings, particularly at an interim or preliminary stage, have been conducted wholly or partly via telephone or video links, and it has been possible to conduct even substantive hearings by video-conferencing technology without anyone being present in an actual court room.
This means that, in theory at least, the courts of England and Wales should be relatively well prepared, should the need arise, to conduct most if not all of their civil litigation by remote rather than physical hearings during the coronavirus epidemic.
The situation in China
China is leading the world not only in the draconian measures it is taking to control the spread of the virus, but in the technological solutions it is applying to the ongoing administration of justice. As cities have gone into lockdown and new hospitals been built in a week, the Chinese courts have also had to adapt rapidly to the need to conduct their business online.
Fortunately, the necessary technology was already in place. China set up its first Internet court in the eastern city of Hangzhou in August 2017, followed by the establishment of similar courts in Beijing and Guangzhou in September 2018.
Last month the Supreme People’s Court of China announced: “Considering that the epidemic may last for some time, the Supreme People’s Court, the country’s top court, ordered courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get better legal services and protection.”
Subsequent announcements have provided examples of the process in action. In one case a local court judge, ‘Dressed in a robe and facing the screen’, heard a criminal case without any of the parties being physically present. The case concerned a violation of epidemic prevention and control regulations. ‘With legal procedures completed, the defendant was sentenced to nine months in prison,’ the report concludes.
In another case described on the Supreme People’s Court website, a judge with Beijing No 1 Intermediate People’s Court used an online video communication system app called Yunshenpan, which literally means ‘trial in the cloud’, to complete a hearing about a private loan dispute. Judge Chen Shi said use of the app ‘not only met the litigation demands of the two parties, but also ensured their health and safety during the epidemic period’.
The Supreme People’s Court of China has also promoted the use of ‘mobile micro court’ on the social media platform WeChat in 12 provinces and cities to help courts conduct trials on the Internet.
Can we do the same here?
It is evident from the reports above that the courts in China are using online hearings to deal with both criminal and civil matters during the coronavirus epidemic. The establishment of China’s online courts is one of a number of pioneering developments described in lawtech consultant Richard Susskind’s latest book, Online Courts and the Future of Justice (OUP, 2019).
But as readers of this column will know, we have been developing what Susskind describes as “the world’s most ambitious court reform programme” here in England and Wales for the last four years (see New courts for old, but is justice being served? and Online Justice: a global perspective).
The HMCTS Reform project has struggled with creeping timescales and budget, and parts of it are not expected to be operational until 2025. But the emergency planning of the government in the face of the coronavirus epidemic appears to contemplate some fairly bold initiatives, as well as some rather desperate sounding measures. Could these not include the rapid development and expansion of online hearings to a far wider range of cases?
The government’s Action Plan, published on 3 March 2020, merely observes that ‘The Ministry of Justice’s HM Courts & Tribunal Service have well established plans to deliver key services to protect the public and maintain confidence in the justice system.’ It’s not clear what those plans are, but some indication was given in a report in the Evening Standard earlier this week, about unprecedented new powers to be rushed past MPs to tackle the coronavirus outbreak.
Among other possibilities mentioned in the report, “court witnesses will appear by video in many cases under sweeping emergency powers to cope with coronavirus. The move is among special measures contained in a draft ‘beast of a Bill’ that ministers intend to rush through Parliament by the end of this month.”
The article goes on to explain that “video testimony is currently allowed in courts mainly to protect vulnerable witnesses from intimidation. Extending the permission to ordinary witnesses would cut the risk of transmission within the court. However, it could prove controversial with lawyers who say that it undermines their ability to cross-examine people and makes it harder for juries to decide if someone is telling the truth.”
The Bill has yet to be introduced – the article says it may appear “as early as next week” – but what emerges is that the temporary relaxation of procedure will cover criminal as well as civil litigation, and in that sense go much further than was envisaged for the initial development of online courts. But necessity is the mother of invention, and may in this instance also be the father of better funding, and that might be just the boost the HMCTS Reform project needs to match the ‘can-do’ spirit of Chinese infrastructure development.