The response to the COVID-19 pandemic in the civil justice system has reduced the availability and accessibility of legal advice with a disproportionate impact on court users with lower incomes, according to a new review which also exposed lack of data on the experience of litigants in person. The Civil Justice Council report argues that the economic climate had caused a rise in legal need which is then met by restricted access to advice.
The rapid expansion of remote hearings has been central to the continuing operation of the justice system, with almost no cases going ahead in person. Whilst it has been reported that lawyers forced to litigate through remote hearings are satisfied with the experience, the new research is heavily weighted in favour of the experience of commercial lawyers – just under half of the remote hearings considered (47%) were higher value claims worth over £50,000. Only a small number of the hearings looked at involved litigants-in-person (11%) and only 11 of 1077 respondents to the online survey were lay people or court users as opposed to lawyers.
‘Improving the data that is collected is vital to make the voices of litigants in person and lay users of the justice system heard,’ said Dr Natalie Byrom, director of research at the Legal Education Foundation who led the research. She said that the report highlighted ‘systemic deficiencies in the information that is currently available on the operation of the civil justice system’.
According to the report, the pandemic arrived at a time of under-investment particularly at county court level which compounded the difficulties experienced by practitioners. Almost half of all hearings experienced technical difficulties, while nearly a third of respondents reported that no one had provided technical support. The majority of respondents felt that remote hearings were ‘worse’ and ‘less effective in terms of facilitating participation’, as well as being more tiring.
Respondents indicated more positive experiences with costs hearings than interlocutory hearings, and enforcement hearings, appeals and trials were experienced the least positively. The review concluded that ‘these findings suggest tentative support for reserving remote hearings for matters where the outcome is likely to be less contested’.
The review also urged that a working group ought to be established to devise solutions for monitoring the backlog of cases which have arisen and which pose an ‘enormous challenge for the civil justice system’.
Lay users of the civil justice system and litigants in person were affected disproportionately by lack of communication from court staff and a decline in the amount of administrative support available at court. These users are often unable to access the technology and resources needed to effectively participate. Failures of the courts to respond to requests in a timely fashion resulted in some respondents being unable to attend hearings.
Housing law experts emphasised ‘the inherent unsuitability of remote hearings as a mechanism for dealing with possession cases’. According to the housing charity Shelter, only 20% of their clients were able to communicate via email and the remainder ‘do not have Zoom/Skype’. ‘There is a serious risk that possession orders will be made which would not have been made at a physical hearing because the defendant has been unable to explain his/her circumstances fully, either to a duty adviser or to the court,’ it said.
The Law Centres Network said that there were ‘grave risks’ attempting to move the court duty advice scheme online. ‘It is bad enough as it is trying to get to the bottom of the story with clients quickly enough when you can see the paper,’ they said.
The review found that, while journalists and court reporters were largely able to attend hearings where they have wished to do so, this was not always the case for those outside of the accredited media such as legal bloggers, NGO representatives and members of the public. Concerns were raised about media access being treated as synonymous with open justice. ‘A major problem appears to be an assumption… that providing access for media coverage is somehow equivalent to open justice. Para 3 of the Civil Procedure Rules practice direction states: ”Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.” For a number of reasons that is simply not the case.’
‘I’ve never felt so stressed in my life’: one litigant-in-person’s experience of remote justice
‘I’ve never felt so stressed in my life, we had already been put in a situation with COVID as it was I was losing my job then I had a court case via a phone call which I found humiliating… . I wasn’t really given a chance to explain, I didn’t understand the words as I’m not that clever. There was a pause there I was then told that that was my time to speak. I tried to explain, then someone else spoke and they spoke to each other. I was so confused, so I asked if they could explain then I heard one say how I’d ‘ignored’ all correspondence, so I said I didn’t ignore anthing, to which I was told…quite stern: DO NOT INTERRUPT ME. I felt stupid and very upset, so I listened very quietly to the end, the hearing was then closed, I got off the phone very, very distressed.’