Remote Hearings During COVID-19

COVID-19: Recent High Court Decisions - A view from the Bench on Virtual Remote Hearings 

On 20 April 2020, courts in Ireland sat with all parties present, in court, via video technology. Both the Supreme Court and Court of Appeal heard matters via video, from remote locations with the cases displayed on video screens in empty courts, where members of the media were present. It is anticipated that other initiatives to organise future court hearings will continue to the expand in the coming weeks. In a statement delivered in court via remote link, the Chief Justice, Frank Clarke emphasised that modernisation of processes was also taking place, in tandem with the use of technology.  Sharon Delaney looks at three recent decisions of the High Court which highlight the view from the bench with respect to urgency, applications for adjournments and the suitability of remote hearings in specific cases. 

Perrigo Pharma International DAC v John McNamara and Ors [2020] IEHC 169 - Ex tempore, Barniville J., 7 April 2020

The case concerned a challenge to a tax assessment of €1.64 billion, by way of Judicial Review, which was listed for hearing on 21 April 2020. The applicant applied for the case to proceed, noting the importance of the matter and the prejudice that would accrue if the hearing was delayed. In correspondence with the Revenue solicitors, the applicant proposed a variety of restrictions, designed to ensure the personal safety of those involved in the hearing.  The Revenue solicitors were not in agreement.

In adjourning the case, Mr Justice Barniville noted that the protocol proposed by the applicant's solicitors envisaged a hearing with far-reaching restrictions and conditions and in that context, a physical hearing was not appropriate.  The Court also noted the objections raised to a possible remote hearing of the case, given the anticipated length of the case, the volume of the documentation involved and the complexity of the issues and agreed that a virtual hearing would not be possible on 21 April 2020.  However, the Court did not preclude the possibility of a remote hearing at a future date. 

Gleneagle Hotel (Killarney) Limited v Cork County Council [2018] IEHC 168, Barniville J., 6 April 2020

An adjournment application was made by the applicant in public procurement proceedings, which are listed for hearing on 7 and 8 May 2020. In correspondence with the other side, the applicant's solicitor outlined that their client's situation had changed dramatically since the outbreak of COVID-19, their business had been closed and there had been significant employee layoff, resulting in a shift of focus to the immediate and urgent needs of the business.  As such, an adjournment was sought until June 2020.  The application was opposed and considered by the Court by way of affidavit evidence and written submission.

Whilst the Court accepted that the applicant has experienced major difficulties in complying with the directions, Judge Barniville noted the considerable urgency of the application and directed that the application should be ready to be heard on the assigned dates.   However, the Court accepted that the case might not proceed if a remote hearing could not be arranged or in the event that a physical hearing is not possible.

Friends of the Irish Environment CLG v Minister for Communications Climate and Ors [2020] IEHC 159, Simons J., 3 April 2020

An application was made by the State to adjourn to October judicial review proceedings listed on 30 June, the application was opposed. The adjournment request was grounded on the argument that the Department principally responsible for dealing with the issues raised by the proceedings is a small team, the employees were working remotely and were involved in other urgent work, connected to COVID-19. Consequently, difficulties arose in preparing the matter for trial. The case was admitted to the Strategic Infrastructure Development list, which operates a strict case management practice. Mr Justice Simons refused the adjournment application but extended the case management timetable.

In making its decision, the Court recognised the vital role played by the officials and stated that that the Court would never do anything which would impede the ability of officials to discharge their vital role in the time of national crisis. Nonetheless, the Court was not satisfied that there is any conflict between ensuring that the hearing goes ahead on 30 June and allowing the officials time to carry out their vital role. The Court also noted that the rationale for the adjournment request stems from practical and logistical difficulties presented by remote working. Unless the administration of justice is to grind to a halt, this cannot represent a valid excuse for adjourning legal proceedings for a period of in excess of three months.   The Court acknowledged the need for flexibility as regards the precise form of the hearing on 30 June 2020 and noted that this was a case that could be dealt with by way of remote or virtual hearing.

Judicial Comment – Remote Hearings

In the context of the decisions in Perrigo and Gleneagle, Mr Justice Barniville noted that there was considerable uncertainty as to how cases will be heard in the Commercial List and expressed the hope that remote hearings will be possible for cases in the Commercial List at some point in the term commencing on 20 April. However, the Court stated that it was too early to say when that might be, what cases might be deemed suitable and how the capacity for such remote hearing would be prioritised as between the different lists in the High Court. In a promising development, mock trials were undertaken in the Commercial Court over the Easter vacation.

Takeaway

The Court Service together with the Judiciary are committed to the ongoing administration of justice throughout the COVID-19 crisis. All relevant stakeholders are endeavouring to develop the pathways for hearing cases which are listed in the forthcoming legal terms. Litigation is in uncharted territory but the need to adapt and the willingness to do so, is evident.