PROTOCOL REGARDING REMOTE HEARINGS: OFFICIAL GUIDANCE

This Protocol was issued on the 20th March.

 Civil-court-guidance-on-how-to-conduct-remote-hearings

CIVIL JUSTICE IN ENGLAND and WALES
PROTOCOL REGARDING REMOTE HEARINGS
20 March 2020: for publication

Introduction to this Protocol

1. The current pandemic necessitates the use of remote hearings wherever possible. This
Protocol applies to hearings of all kinds, including trials, applications and those in which
litigants in person are involved in the County Court, High Court and Court of Appeal (Civil
Division), including the Business and Property Courts. It should be applied flexibly.
2. This Protocol seeks to provide basic guidance as to the conduct of remote hearings. Whilst
most court buildings currently remain open, the objective is to undertake as many hearings
as possible remotely so as to minimise the risk of transmission of Covid-19.
3. The method by which all hearings, including remote hearings, are conducted is always a
matter for the judge(s), operating in accordance with applicable law, Rules and Practice
Directions. Nothing in this Protocol derogates from the judge’s duty to determine all issues
that arise in the case judicially and in accordance with normal principles. Hearings
conducted in accordance with this Protocol should, however, be treated for all other
purposes as a hearing in accordance with the CPR.
4. It is inevitable that undertaking numerous hearings remotely will cause teething troubles.
All parties are urged to be sympathetic to the technological and other difficulties
experienced by others.
5. CPR Part 39.9 provides that “[a]t any hearing, whether in the High Court or the County
Court, the proceedings will be tape recorded or digitally recorded unless the judge directs
otherwise” and that “[n]o party or member of the public may use unofficial recording
equipment in any court or judge’s room without the permission of the court”.
6. CPR Part 39.2(3)(g) provides that hearings can (actually must) be held in private if the court
is satisfied that it is, for any reason, “necessary, to secure the proper administration of
justice”. In such a case, however, a copy of the court’s order to that effect must be
published on http://www.judiciary.uk, “[u]nless and to the extent that the court otherwise directs”,
and non-parties may apply to attend the hearing and make submissions, or apply to set
aside or vary the order.
7. There are, therefore, the following legal issues to be addressed before any remote hearing
can begin: (i) whether the hearing is to be in public or in private; if in private, on what
grounds, and (ii) how is the hearing to be recorded, or can an order properly be made to
dispense with recording?

8. As to the first, remote hearings should, so far as possible, still be public hearings. This can
be achieved in a number of ways: (a) one person (whether judge, clerk or official) relaying
the audio and (if available) video of the hearing to an open court room; (b) allowing
accredited journalists to log in to the remote hearing; and/or (c) live streaming of the
hearing over the internet. The principles of open justice remain paramount.
9. As to the second, the recording of hearings and compliance with CPR Part 32.9 can also
be achieved in a number of ways: (a) recording the audio relayed in an open court room by
the use of the court’s normal recording system, (b) recording the hearing on the remote
communication programme being used (e.g. BT MeetMe, Skype for Business, or Zoom),
or (c) by the court using a mobile telephone to record the hearing. It is not, however,
permitted for the parties to record the hearing without the judge’s permission.
What should happen when a hearing is fixed?
10. In the present circumstances, the court and the parties and their representatives will need
to be more proactive in relation to all forthcoming hearings.
11. It is good practice for the listing office, judges, clerks and court officials to consider as far
ahead as possible how future hearings should best be undertaken.
12. It will normally be possible for all short, interlocutory, or non-witness, applications to be
heard remotely. Some witness cases will also be suitable for remote hearings.
13. Available methods for remote hearings include (non-exhaustively) BT conference call,
Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. But
any communication method available to the participants can be considered if appropriate.
14. Before ordering a hearing by court video link, the judge must check with the listing office
that suitable facilities are available.
15. The listing office will seek to ensure that the judge(s) and the parties are informed, as long
in advance as possible, of the identity of the judge(s) hearing the case.
16. Judges, clerks, and/or officials will, in each case, wherever possible, propose to the parties
one of three solutions:-
(i) a stated appropriate remote communication method (BT conference call, Skype for
Business, court video link, BT MeetMe, Zoom, ordinary telephone call or another
method) for the hearing;
(ii) that the case will proceed in court with appropriate precautions to prevent the
transmission of Covid-19; or
(iii) that the case will need to be adjourned, because a remote hearing is not possible
and the length of the hearing combined with the number of parties or overseas
parties, representatives and/or witnesses make it undesirable to go ahead with a
hearing in court at the current time.
17. If the parties disagree with the court’s proposal, they may make submissions in writing by
email or CE-file (if available), copied to the other parties, as to what other proposal would
be more appropriate. On receipt of submissions from all parties, the judge(s) will make a
binding determination as to the way in which the hearing will take place, and give all other
necessary directions.
18. It will also be open to the court to fix a short remote case management conference in
advance of the fixed hearing to allow for directions to be made in relation to the conduct
of the hearing, the technology to be used, and/or any other relevant matters.
19. The fact that a hearing is to be a remote hearing and, where possible, the technological
method to be employed, will normally be shown in the cause list.
The remote hearing itself
20. The clerk or court official, and the parties, will all need to log in or call in to the dedicated
facility in good time for the stated start time of the remote hearing. In a Skype, Zoom or
BT call, the judge(s) will then be invited in by the clerk or court official.
21. The hearing will be recorded by the judge’s clerk, a court official or by the judge, if
technically possible, unless a recording has been dispensed with under CPR Part 39.9(1).
The parties and their legal representatives are not permitted to record the hearing. With
the court’s permission, arrangements can be made with privately paid-for transcribers.
22. The hearing can be made open to the public, if technically possible, either by the judge(s)
or the clerk logging in to the hearing in a public court room and making the hearing audible
in that court room, or by other methods (see [8] above). But in the exceptional
circumstances presented by the current pandemic, the impossibility of public access should
not normally prevent a remote hearing taking place (see [6]-[7] above). If any party submits
that it should do so in the circumstances of the specific case, they should make submissions
to that effect to the judge.
23. The clerk, court official or the judge(s) must complete the order that is made at the end of
the remote hearing. The wording of the order should be discussed and agreed with the
parties.
Preparations for the remote hearing
24. The parties should, if necessary, prepare an electronic bundle of documents and an
electronic bundle of authorities for each remote hearing. Each electronic bundle should
be indexed and paginated and should be provided to the judge’s clerk, court official or to
the judge (if no official is available), and to all other representatives and parties well in
advance of the hearing.
25. Electronic bundles should contain only documents and authorities that are essential to the
remote hearing. Large electronic files can be slow to transmit and unwieldy to use.
26. Electronic bundles can be prepared in .pdf or another format. They must be filed on CEfile (if available) or sent to the court by link to an online data room (preferred), email or
delivered to the court on a USB stick.

The Master of the Rolls
The President of the Queen’s Bench Division
The Chancellor of the High Court
The Senior Presiding Judge

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