Coronavirus: Judge hopes more High Court cases can be heard remotely

Mr Justice David Barniville, of the High Court, who presided over a number of commercial court hearings held remotely last week, said they had “worked fine” and that he had reported this back to his colleagues in the court. 

 

Each of the cases involved just two parties, and the papers were filed with the judge prior to the remote hearing. The barristers involved were each in different locations, as were the solicitors. There were no witnesses. The judge was in court, as was the registrar. 

 

Last week the High Court and the Circuit Court held a number of remote hearings, joining the Supreme Court and the Court of Appeal which had already held remote sittings. 

 

Remote hearings were “a way of tiding us over until we get back to physical hearings,” Mr Justice Barniville told The Irish Times. 

 

“We hope that if there is an easing of restrictions, that we will be able to have more physical hearings as well. Because the message the courts would want, and that the judges would want to give, is that there is a real desire to facilitate court business and to facilitate litigants and practitioners.” 

 

You can’t get a good picture of the other person, the opponent... or of the clients, or the solicitors 

The idea that “the whole thing is shut down and closed for business is not good – not good for the judges, not good for the courts, not good for the system”. 

 

Most judges were very keen to work whatever system will allow for more hearings to take place, he said. 

 

Witness evidence 

However, he said, even with cases that did not involve witness evidence, remote hearings were not ideal. 

 

“You can’t get a good picture of the other person, the opponent, while the other side is speaking, or of the clients, or the solicitors, because they are relegated to a little box at the bottom of the screen. 

 

“Quite often you want to see how a submission is going down, what the reaction of the other side is to it. So you miss all of those.” 

 

Mr Justice Barniville said remote sittings involving witness evidence were even more problematic. 

 

“In a courtroom you can just look down and see the reactions that everyone is having, and sometimes the reactions are quite important to the evidence being given by somebody on the other side, and you might want to ask them about that when they get into the witness box. You won’t have seen any of that if it is on video.” 

 

You just wonder if people treat it with the same degree of seriousness 

Mr Justice Barniville said he believed the very fact of someone having to come to court created advantages that were lost in remote hearings. 

 

“There is the stature of the court and all that goes with the court. It is not quite the same as a judge being in a room, or in their own kitchen. You just wonder if people treat it with the same degree of seriousness as they would if they had to physically come in to the courtroom and see the trappings of the court and the harp over the bench.” 

 

Early days 

It was still early days, however, he said, and as time passes those involved may get better at working remotely and become bigger fans of the process. 

 

He noted that in a recent ruling in the English courts, the president of the family law division of the High Court, Sir Andrew McFarlane, said that just because a hearing can be held remotely, does not mean it should be. 

 

The English judge was commenting about a contested case that was scheduled to go ahead and which involved a final care plan for a child who was living with her mother’s friend following an interim care order. 

 

Arguing that the case should not go ahead, McFarlane said it was important that the judge could see all the parties involved, particularly the mother, and that a “postage stamp image” on a screen was a very poor substitute to seeing that person fully present in a courtroom. 

 

Following the intervention, the hearing was relisted for a date after the lockdown is expected to end.