The Impact of COVID-19 on the Operation of the Courts

In our latest blog, Tom Ward, Head of the Superior Courts Operations Directorate writes on the impact of Covid-19 on the operation of the courts and ways forward for the modernisation of the courts system.

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Tom Ward joined the Courts Service shortly before its establishment in 1999 and was recently appointed as the Head of Superior Courts Operations Directorate. He held various senior operational positions in the Courts Service in Dublin and holds a B. Comm. from UCD and M.Sc. in Organisational Behaviour from TCD.

Like in many workplaces, there was an air of confusion and dread in late February 2020 at pictures coming from Wuhan of new hospitals being built in record time. China seemed so far away and we hoped that like the SARS outbreak of some years ago, that the outbreak would be largely confined to the other side of the World. The subsequent pictures coming from Italy were a game-changer as Covid-19 became an issue that was no longer remote but something we here in Ireland could expect to have to deal with.

The fear of how virulent the disease was made mitigating its effects on the operation of the courts more challenging. The inability to source hand sanitiser, signage, and take other steps heightened anxiety in courthouses and among staff and court users. The personal experience and attitude to the risk of contracting Covid also heightened tensions among our stakeholder groups. Some users were happy to continue to operate as normal without respecting social distancing requirements while others, for understandable reasons including having underlying health conditions or living with people who had health problems, were very nervous about coming into crowded settings, like courthouses, to do any type of business. This spectrum of views – from the stakeholders who believe that more in-person business should be transacted to people who believe everything should be done remotely – continues to present challenges for the courts.

Looking back on the correspondence from March 2020, it is clear how quickly attitudes changed from bemusement to real concern. From the start, there was exceptional commitment among practitioners, staff, and Judges to try to continue to provide services. Everyone was understandably anxious about the situation, but the level of professionalism shown was outstanding, especially when faced with very anxious court users.

All Court Offices remained open during March, but this evolved to offices where face to face contact was required being open on appointment only. We worked with the professions and the justice agencies to limit the numbers attending courthouses to a minimum, while managers were asked to work with colleagues to look at seating arrangements so as to adhere to social distancing advice. Installing facilities such as drop boxes for depositing legal documents made a significant contribution to reducing footfall into courthouses and mitigated some of the impact of the closures.

Particular credit is due to our Courts Service colleagues in ICT who responded to unprecedented demand for remote working solutions and court solutions. The Courts Service had already installed the Pexip App on its video technology systems to facilitate the giving of evidence remotely by witnesses and this was repurposed to host remote hearings. Judges and practitioners quickly became used to using the system and identified new types of business that could be hosted in this way. The table below which shows usage across the jurisdictions from March 2020 up to 24th December 2020 is particularly instructive:[1]

We have found that the preference for particular packages /Apps is largely a subjective matter, with different users having their own preferences. The Supreme Court and Court of Appeal have been able to keep on top of their work, largely because they have adopted the Pexip system as the means by which they conduct their business.

Courts and court users have found that video technology is particularly suited to call overs of cases or cases where settlements have to be ruled. The associated hardware to support this type of sitting will be installed in a further 43 courtrooms over the next 12 months or so. The Courts Service is examining its options regarding what applications it can support as well as increasing the installation of Wi-Fi routers in various locations, including the Four Courts. Where we initially thought that remote hearings would only be suitable for cases with written submissions, the range of cases being heard using the remote platform is evolving.

The use of video technology for dealing with cases involving people in custody has also made a very significant contribution to supporting the running of prisons and other places of custody. Prisoners and their legal representatives were understandably extremely anxious about getting Covid in a confined setting like a prison and were wholeheartedly enthusiastic about dealing with their court appearances remotely. The logistics of facilitating such appearances accused persons were and continue to be a huge challenge for Irish Prison Service (IPS) and Courts Service staff, as well as legal practitioners. However, the benefits to the integrity of the prison system were enormous and undoubtedly made a major contribution to keeping the IPS estate Covid free, at least until recent weeks.

For the courts that still required people to attend in person, there were similar logistical challenges and court offices instituted systems to stagger the arrival of litigants and their representatives to courts. The main challenge has been communicating arrangements to practitioners and their clients. The physical infrastructure determined the maximum amount of people that could be safely accommodated in locations, respecting social distancing rules. This had several impacts which included:

1. Limits to the numbers of courts that could sit in a courthouse at any one time

2. Limits on the types of business that could be heard in particular courtrooms

3. Limits to the venues that could be supported.

In relation to the second point, the inability to conduct criminal jury trials in some locations was a particular cause of frustration to some legal practitioners. Local solicitors Bar associations were unhappy when their particular courthouses were found to be too small to host criminal jury trials. This meant that for the criminal bar in those counties, they were at a loss because those trials could not go ahead. Usually, their practices are such that they do not get work in other counties. This led to some hard and unpopular decisions being taken about the venues hosting criminal jury trials. Additionally, some extra capacity was leased around the country to facilitate the jury empanelment process, where local courthouses could not accommodate the numbers required for a jury.

There were similar issues with lists where large numbers of people historically attended court. Personal Injury lists on Circuit and garda summons lists in the District Court have been areas where it has not been possible to run courts in a traditional manner. Alternative approaches to listing cases and improving their throughput of cases are being tried. It was interesting to see the statement of Ms. Justice Mary Irvine, President of the High Court, addressed to practitioners on how personal injury actions might be concluded during the latest round of restrictions in January 2021:

While routine personal injuries cases will not be heard until further notice, the cases currently listed for hearing on any given day will, having regard to the interests of justice and the Court’s own obligations to ensure that litigation is concluded in a timely manner, remain in the Court list on their allocated date in the expectation that the vast majority of these cases will be finalised by negotiation between the parties. This approach is warranted given that the current unprecedented circumstances have already caused certain personal injury actions to be postponed on more than one occasion and where High Court statistics show that approximately 97% of all personal injury claims are settled without recourse to a court hearing.[2]

By contrast, the scheduling of criminal summonses will be much more challenging, given that there is likely to be a penalty at the end for the accused.

Lessons for the Modernisation of the Courts System

The Courts Service is embarking on a 10-year programme to modernise how it delivers its services and while Covid-19 has not been helpful in the conduct of court business, it has enabled the Service to try out many new things that previously would not have been countenanced. In particular, it has made the case for:

More online filing of documents – the idea of making people queue to pay stamp duty and have their documents lodged is a historic concept that needs to change.

Staggering attendances at public offices and courts – none of us would accept a situation where we need to see our dentist and we are told to arrive at 10.30am and wait until the other people before you are free. Having litigants and their legal representatives tied up in court to wait for their case is called is a waste of time for all involved.

More online and video technology – at its root, people come to court to get a decision. While there is the constitutional imperative that courts are held in public, there is no reason why more court business cannot be transacted via video technology. The same video technology could in the future also facilitate greater transparency as to how courts operate.

Real-time information on what business is being transacted and data generally – for understandable reasons, there has been huge interest throughout the pandemic on what business is being heard and what business has been held over. This has been a feature of every court location and will require the Service to improve its capacity to provide real-time operational information on a much more consistent basis.

Increased usage of Alternative Dispute Resolution (ADR) – treating judicial time as a scarce national resource should prompt all involved to ensure that the courtroom is reserved for those issues which cannot be decided upon in any other forum. The imaginative approach of the Legal Aid Board in establishing on-line family mediation is yet another example of that organisation thinking laterally to deliver justice to clients. While not suitable in every case, mediation and other forms of ADR have provided solutions to people during the pandemic and should be part of the future.

Conclusion

Overall, the practitioners, agencies, and Judiciary have all stepped up to continue to provide access to justice during the pandemic and they deserve great credit for doing so, in a range of imaginative and innovative ways. The challenge for all of us working in the justice system is to build on the initiatives introduced and deliver justice to everyone living in Ireland – faster, simpler and more cost effectively. We have collectively tried to fast-track innovations during the pandemic and some initiatives have been more successful than others. What we need to do is build on the innovations to make them run more efficiently, for the benefit of all who use the courts.

[1] The following table represents individual hearings which were booked through the Pexip App.

[2] Ms. Justice Mary Irvine, ‘Covid-19 Notice: High Court Civil Sittings until further Notice’ (The Courts Service of Ireland, 5 January 2021) <https://courts.ie/news/covid-19-notice-high-court-civil-sittings-until-further-notice> accessed 2 February 2021.