Certain exceptions are well established: for example, allowing a vulnerable witness in criminal or family law proceedings to give evidence via video link.

But often this dispensation was limited to excusing the witness from being present in a specific courtroom. The witness would often still be present in the court building, giving evidence from another room.

However, there have been examples of certain witnesses, such as infamous whistleblower Heinrich Kieber, who have been permitted to give evidence remotely for safety reasons.

Similarly, there have always been parties who are unable to attend court for reasons such as infirmity.

Presenteeism

Still, the point is that these are exceptions to the rule. The overwhelming default position is that parties have been required to be physically present at court, unless special dispensation has been granted.

The bar for attaining this dispensation is set high.

For example, the fact that a client may incur additional costs – such as taking time off work or organising childcare – to be physically present in court is not necessarily a reason to allow them to appear remotely. Extenuating circumstances beyond this are often required.


Now, that default position has reversed. Parties and practitioners are experiencing the benefits of the video-link hearings.

No more turning up at court and finding that there are still multiple cases on the list ahead of your own.

No more waiting five hours at court for a five-minute appearance.

No more billing the client for travel time or waiting time.

The challenges

Instead, the luxury of staying in one’s office or home office, continuing to work on other matters until the court is ready.

Of course, there are challenges. It is more difficult to cross-examine witnesses. One can’t simply walk up to the bar table to tender evidence.

Some might even argue that the adversarial tension has diminished. Barristers are mourning the loss of the ability to observe witness demeanour, especially in cases where credibility is in contest. There are some compelling reasons to conduct hearings in person. But few of these relate to procedural matters.


All of this comes back to the initial question: is it time for the current status quo to become permanent, at least for procedural matters?

Surely the experience of the past few weeks must give us cautious optimism that a more efficient, cost-effective approach to justice is within reach.

Of course, some adjustment will be required. The availability of electronic filing and the ability to view and share documents digitally is not yet at the optimum level. There will be some matters that lend themselves to the direct courtroom environment.

We need new systems and protocols to deal with these challenges. But if the legal profession has learnt anything from COVID-19, it is that we are all more adaptable than we realise.

Ashley Tiplady is a partner at Mills Oakley.