What does the future hold for business and property litigation?

On 10 May 2021 in his Speech to the Civil Justice Conference, Sir Julian Flaux, Chancellor of the High Court, presented an informative insight in relation to the challenges faced in litigation in the Business and Property Courts during the global pandemic. That same day, The Right Hon. Sir Geoffrey Vos, Master of the Rolls, gave a keynote speech at London International Disputes Week, also touching upon the impact of COVID19 and the changes, and challenges, to the legal system.

During the pandemic, the courts adopted several changes to their systems in order to keep the justice system going.  In the past, the courts adopted a more flexible approach when dealing with evidence provided remotely. This usually concerned witnesses from aboard who were unable to attend within the jurisdiction and would therefore be required to give evidence over video link. Due to the pandemic, this has expanded to many, if not all, witnesses giving evidence remotely, regardless of whether they were within the jurisdiction or abroad.

When the restrictions will eventually be lifted, there is likely to be continued pressure from parties that some witnesses give evidence remotely, even when the witness in question is in the UK. Despite the technical difficulties that come with remote hearings, the courts will need to adapt to the new technological changes in order to adhere to the golden rule of providing “access to justice” regardless of the  global pandemic.

The idea that all hearing should be carried out remotely is up for discussion. It seems that some hearings suit remote hearings very well. These include shorter preparatory and interim hearings, such as direction hearings or hearings that are around 2 hours or less. Going forward the default position for such hearings will be to have them dealt with remotely. However, one must understand that ultimately the decision is one for the judges to make. In simple terms, it is a matter of judicial discretion.

The use of technology is a subject of debate. Some litigants in person have been known to struggle with technology, meaning it runs the risk of undermining their trust in the justice system. It is fair to say that technology has an exclusionary angle, particular for the litigants in person.  In such circumstances, the only reasonable solution is to have an in-person hearing.

Having said that, the use of technology has provided courts with additional flexibility. It has meant that specialist judges ‘sitting’ outside London will now be able to deal with short hearings or applications that require a High Court Judge where one such judge would previously not be available.  The ability to attend hearing remotely means that the London-based judges are now more likely to hear cases that have been issued in other cities such a Manchester and Newcastle. Many have argued that the use of technology means that there is a sense of informality with remote hearings however these informalities are a small price to pay as the courts work to keep the justice system operational.

It is greatly appreciated that there are some challenges to remote hearings, however, it is safe to say that remote hearings are here to stay. One must seize the good aspects that have come from the pandemic.  Sir Julian Flaux concludes his speech by explaining that as practitioners we cannot know what the future will hold especially in light of Brexit and the continuing impact of Covid. However, as times are changing the legal system must continue to adapt to remain fit for purpose.

Sir Geoffrey Vos has a similar view on the legal system adapting to the changes in the current technological world. In his speech, he explores the number of online systems that currently exist in the England and Wales, these include the Money Claims Online, the Personal Injury Claims portal, Possessions Claims Online and many more. 

Sir Vos points out the importance of providing an online dispute resolution processes for all civil disputes both pre-court and once court proceedings begin. It is believed that the online pre-court process will help resolve a significant number of disputes without court proceedings ever being issued. The online dispute resolution system will account for the needs and expectation of the new generation consumers. 

It is believed that the types of disputes that will arise in the future will not be the kind that once arose in the past. They are going to be digitally based concerning on—chain transaction, purchases made on Apple and Amazon platforms. These disputes will arise from digital rather than paper documents. Therefore, we must be ready for the change.

Sir Vos concludes his speech by pointing out the many changes adopted by the judicial system due to the pandemic. He explains that COVID19 has allowed the judicial system to see that the dated paper-based and face-to- face hearings can equally be well delivered online and digitally.  It is a well-known fact that the justice system has a reputation for being slow to accept new ideas. One hopes that, as a result of the current digital revolution, the courts of England and Wales rise above and lead the way in setting a good technological example.

As it stands today, there are many more changes that the judicial system are yet to introduce, however as a result of the pandemic, the legal system has had to adapt at an increased rate to ensure the justice system remained operational during the global pandemic.  The systems used by practitioners today may soon be replaced with automated online systems that will help take the burden off the courts, allowing for faster and more efficient case handling by the courts.

It is said that the greatest technological changes come during times of war, and one might say that the same applies to the COVID19 pandemic. There have undoubtedly been significant changes to the court system and infrastructure, and both of these speeches from senior judges make it clear that this is unlikely to change soon. Lessons have been learnt and will continue to be implemented.

For our clients this means that there will no doubt be significant changes which they will have to navigate through. While judges speak of the informality of video-link hearings, from a practitioner’s perspective it is equally difficult to explain to the clients how trials work without the formal surroundings of court.

Both judges spoke in relation to courts and hearing which affect many, if not all of the clients Judge & Priestley represent. As such, we will also continue to adapt our approach to litigation in order to service our clients as best as possible and to steer them through the difficult and challenging times we are now going through.

Please do not hesitate to contact us if you wish to discuss any matters specifically.

Written by - Farishta Kamal, Trainee Solicitor

To ensure you do not miss out on similar articles and legal updates, please subscribe up to our newsletter.

Take the first step today in recovering money you're owed