On 21 August 2020, several provisions of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the Act) came into effect, following an expedited legislative process in response to the COVID-19 crisis.
The Act seeks to address the plethora of litigation challenges and legal issues posed by the current crisis and includes provisions which:
- provide a statutory basis for the Courts to conduct remote hearings in civil and criminal proceedings;
- allow for the electronic filing of documents in civil matters as an alternative to the lodgement or filing of documents or applications in paper form;
- permit new types of Court applications to be heard via video link and enable witnesses to give evidence remotely by video link.
Remote Court hearings are now on a statutory footing
In recent months, the Irish Courts have conducted certain remote hearings using PEXIP, a video conferencing platform that enables virtual hearings. Accessing this technology has allowed the Courts to continue to function, although in a limited capacity. In addition, following a successful pilot involving judges from the Irish Commercial Court, the Courts Service has now approved the use of TrialView. This is an alternative remote hearing platform, available on application by the parties, which is envisaged will be well suited to witness hearings or document led matters.
Part 2 of the Act recognises the recent innovations made by the Irish Judiciary and the Courts Service regarding remote hearings in civil proceedings and, for the first time, places such hearings on the same statutory footing as proceedings held in a physical courtroom. The Act also provides a statutory acknowledgment of the inherent jurisdiction of the Irish Superior Courts to hold remote hearings.
While the Irish Superior Courts possess an inherent jurisdiction to regulate proceedings before them, the Act also recognises the jurisdiction of the District and Circuit Courts to conduct remote hearings. This is a welcome step forward and will guard against any challenge to the legitimacy of remote hearings in all Irish Courts.
The use of remote hearings is expected to support the Courts efforts to deal with COVID-19 related backlogs in court lists and in litigating cases in Ireland going forward.
The future for proceedings involving oral testimony
On 17 July 2020, the President of the High Court, President Irvine, outlined expansion plans for the ongoing work of the High Court regarding civil litigation. She confirmed that the High Court will resume work across all divisions including the hearing of proceedings requiring oral testimony.
However, there will be an ever-growing demand on High Court resources to progress hearings with oral testimony.
It appears that hearings involving oral testimony from numerous witnesses and experts may involve a hybrid model of court hearing in the future. This would likely encompass elements of physical hearings in the courtroom, where it is necessary for key witness to provide their evidence in person, and the use of virtual courtrooms, where other aspects of cases can be dealt with remotely.
As the reopening of our society continues, the Act allows the Chief Justice and Presidents of the Irish Courts to prescribe the types of proceedings that can be heard remotely and determine the related processes and procedures. As further pandemic disruptions are likely going forward, the use of hybrid hearings in Irish litigation will allow Irish Courts to comply with public health guidance while ensuring that cases progress before the Courts.
Contributed by Nicholas Tallon
