Trial by Zoom – a look at how Courts across common law jurisdictions are responding to the coronavirus
Virtual trials and hearings have risen exponentially in light of social distancing measures required to address the Covid-19 outbreak. The virus has caused significant disruption to everyone’s daily lives and the business of Courts worldwide have been no exception. Globally, Courts have introduced a wide range of measures to respond to the virus. Below we sketch out the key changes in the jurisdictions we practise in as well as a brief overview of the position in England and Wales.
British Virgin Islands
The BVI Courts have recognised their important role in heavyweight dispute resolution and have promptly taken steps to minimise disruption. Having resumed full functionality in a matter of weeks following Hurricane Irma in 2017, the Courts are familiar with remote hearings and emergency measures.
In response to Covid-19, four emergency Practice Directions have been issued by the Eastern Caribbean Supreme Court to ‘facilitate the continuation of court proceedings in member states and territories through the filing, service and disposition of matters which are not presently available on the Court’s e-filing system’. Drawing on its extensive experience of telephone hearings and videoconferencing, the BVI Courts are now conducting virtual hearings (to include trials) and all filings are being undertaken electronically.
Whilst consideration will be given by the Court as to whether a case is appropriate for a virtual hearing, it is expected that most matters (including those of an urgent nature) will proceed as planned. In general, we have seen little disruption to cases. By way of illustration, the Court of Appeal has handed down its Judgment via video link in the retrial of Ng, Man Sun v Peckson Ltd (BVIHCMAP2019/0011) et al on 8 April 2020. This is a significant case given that it was previously appealed to the Judicial Committee of the Privy Council in London. Additionally, on 30 March 2020, the Court of Appeal handed down Judgment by video link in Paraskevaides v Citco Trust Corporation Limited (BVIHCMAP2018/0046) – another landmark decision involving multiple international parties.
The Cayman Islands Grand Court often adopts technology to ensure an efficient administration of justice. During the high profile Saad litigation the Grand Court heard almost three months of witness evidence from Saudi Arabia via video link.
The challenges presented by Covid-19 have been addressed in a press release by the Hon. Chief Justice on 28 March 2020. Whilst videoconferencing and teleconferencing are already widely used, the Court is now actively encouraging this to address the disruption caused by virus.
The practice of Judges presiding over interlocutory proceedings in the Cayman Islands by video link from the UK is permitted in special circumstances. However, in light of the travel bans, the Court has recognised that this may also need to be extended to substantive trials. Special permission for this step has been given by the Secretary of State for Foreign Affairs (through the Governor’s Office) and an updated Practice Direction dealing with this issue is expected imminently. We are therefore likely to see Cayman Judges presiding over trials from London by way of video link. In line with most other jurisdictions, the use of electronic bundles has been "especially encouraged'.
Harneys remain active in the Cayman Island’s Courts despite the pandemic. Closing submissions were made before the Grand Court on 6 April 2020 in the 14 day trial of Trina Solar Ltd (FSD 92/17). A number of other high profile cases are currently progressing, with further remote hearings expected in the coming weeks.
The steps taken to minimise the outbreak in Bermuda are strict. By way of a Practice Direction dated 3 April 2020, the Court has implemented a number of emergency measures with immediate effect.
All hearings from 6 April – 17 April 2020 have been adjourned and all parties have been asked not to attend. Supreme Court Registries have also been closed until Monday 20 April. Consequently, "usual" Court business has come to a temporary standstill.
In its guidance note, the Court has stated that it will only hear matters if they are of ‘extreme urgency’. No specific guidance has been given on this point, but parties will be required to explain why their case falls into this category should they require a hearing. However, as with other jurisdictions, the use of videoconferencing and teleconferencing is strongly encouraged.
In combating the outbreak, the Cypriot Government has announced strict lockdown measures. Cypriot Courts are required to suspend operations unless it relates to an "exceptionally urgent matter".
Lawyers are not permitted to attend Court hearings or the Court Registry for any filings or swearing of affidavits. During this uncertain period, all cases have been automatically adjourned. Parties are able to apply by letter to the Court explaining why a matter is of exceptional urgency which will be considered by a Judge. Only then may the Court grant leave for an expedited/urgent hearing. Such cases include applications for the issuance of interim injunctions, such as freezing and discovery orders, pending appeals for auction cases and specified criminal cases.
"It appears that the Covid curve has been flattened to a considerable degree in Cyprus, with the peak having apparently been reached about two weeks ago (1 April). If this continues then a gradual relaxation of lockdown is likely to begin by mid-May. It is against this background that the Supreme Court yesterday (14 April) announced that it is considering increased hearing dates in May to clear the backlog of cases and hearings over the summer recess. We were not planning on going anywhere anyway…….
Further announcements are expected following Orthodox Easter, which is this Sunday (19 April)."
England & Wales
England & Wales responded quickly to the pandemic with the Coronavirus Act 2020. The Act modifies and expands the Court’s powers to use virtual technology in both civil and criminal proceedings.
On 6 April 2020 the case of Hyde and Murphy v Nygate and Rayment (2020) EWHC 845 saw Mr Justice Kimble QC refuse an application for adjournment of a £250 million trial in light of arguments that logistical issues would arise as a result of Covid-19. In refusing the application, the Judge analysed the issues of remote trial arrangements, the overriding objective, safety, technological challenges and potential unfairness. This is a useful decision and is likely to be referred to in future Covid-19 adjournment applications or those relating to remote hearings.
On 19 March 2020, Mr Justice Teare in National Bank of Kazakhstan v The Bank of New York Mellon (FL-2018-000007) ordered a short adjournment of only seven days to allow for video conferencing facilities to be arranged. He was not persuaded by any arguments for a general adjournment. The circa US$530 million trial therefore resumed on 26 March 2020 by video link. Interestingly, the matter is also being broadcast via a screen in the Courtroom itself to protect public interest considerations.
Of specific relevance to BVI and the Cayman Islands are matters proceeding before the Privy Council - being the final Court of Appeal for both jurisdictions. Since 24 March 2020, these Courts have been hearing all cases and delivering judgments through video conferencing. Whilst matters before this Court are already broadcast, a further step has been taken to ensure matters move forward during these unprecedented times.
When the pandemic eventually subsides, we may well see virtual hearings continue to be adopted if they have demonstrated efficiencies and not hindered the administration of justice. For parties involved in international disputes with witnesses in multiple locations, this is likely to be seen as a welcome step in the right direction.