Coronavirus and the administration of justice – lessons learned for the future of litigation in Ireland?
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In a joint statement issued on 31 March 2020, following a remote meeting held on the day prior, Chief Justice Frank Clarke and the Presidents of each of the Court jurisdictions said a "considerable amount of work has been done" on facilitating remote court hearings which will be piloted in this jurisdiction later this month, in order to ensure the continuation of the administration of justice during the coronavirus restrictions. This is a most welcome development for practitioners, clients and lay litigants alike during these uncertain times and is in addition to the various practical measures already adopted by the Courts Service in response to social distancing requirements. The joint statement indicated that the principal focus of the meeting was to “plan for the future”, particularly in circumstances where the current restrictions are likely to remain in place for some time. However, the new measures provide food for thought as to whether the “peacetime” administration of justice in this jurisdiction is as efficient and cost effective as it potentially could be, particularly having regard to e-filing systems and e-courtrooms which are already well-established in other common law jurisdictions. Below is a snapshot of some of those systems in place in the United Kingdom and Australia, in comparison to current e-filing systems in place, as well as plans for the future, in this jurisdiction.
E-filing, or Electronic Data Interchange (“EDI”) is already in widespread use in Australia. For example, EDI in the Victorian Magistrates Court allows lawyers in that jurisdiction to issue proceedings, default judgments, warrants to seize property and summonses for oral examination electronically. The main benefit is increased processing speed, as well as a reduction in the need to attend the office to lodge documents. The Australian Federal Circuit Court (“FCC”) also facilitates eLodgement of documents in general federal law (Federal Court) and FCC proceedings. In particular, eLodgement may be used by solicitors or lay litigants to commence an action in either jurisdiction and further, parties may also file documents in existing matters using eLodgment. Sealed electronic versions of the documents can then be accessed and printed out for service. During business hours, documents are generally processed within an hour from receipt by the registry. Another useful facility in the FCC is the eCourtroom, which is a secure internet based facility to conduct particular proceedings in general federal law and the FCC via a virtual courtroom and allows parties to those proceedings to participate in on-line discussions with the Court. In particular, pre-trial matters, ex parte applications for substituted service in bankruptcy proceedings and applications for examination summonses are managed by eCourtroom, by allowing directions and other orders to be made online in general Federal Law matters. eCourtroom can only be commenced at the Judge’s or Judicial Registrar’s discretion and only the parties to a matter can contribute, following registration with the eCourtroom.
CE-File is the UK’s new electronic filing and case management system. It was first piloted within the Technology and Construction Court in 2015 and has since been extended to the Chancery Division, the Commercial Court and the Admiralty Court. It is mandatory for solicitors to file documents using CE-File in the Business and Property Courts, Senior Courts Costs Office and/or for claims and appeals in the Queen’s Bench Division of the High Court or the Senior Courts Costs Office, but it is also available for lay litigants. Once files have been accepted by the Court, the progress of cases can be monitored and sealed documents can be obtained by searching for them via the system. Documents can be filed 24 hours a day, including weekends and bank holidays, which enables claims to be issued and documents lodged outside of normal office hours. As regards video or remote hearings, Practice Direction 51V - The Video Hearings Pilot Scheme was also recently introduced independent of measures adopted to deal with the Covid-19 pandemic. The pilot scheme, commenced on 2 March 2020, will test a procedure for applications to set aside default judgments entered in respect of claims for specified monetary sums to be heard by the court via an internet-enabled video link. All parties will attend via video link and hearings can be accessed by the public by attending the relevant court in person where the parties and/or their legal representatives will be on a screen in the courtroom. The Practice Direction provides that the hearing can only proceed via video-hearing upon satisfaction of a number of conditions, including that at least 14 days prior to the hearing date, a pre-video hearing questionnaire is to be completed by the parties, which provides for unrepresented parties to consent to the application proceeding by way of video hearing, and for represented parties to inform the Court of anything that could affect the hearing taking place by video. Separately, as a result of the Covid-19 outbreak, the first trial ever in England and Wales to be conducted entirely by video link recently took place, following which the presiding Judge said it had “proceeded almost entirely without a hitch”. The trial lasted three days and all parties, including the Judge, took part through Skype for Business.
As regards this jurisdiction, having regard to the Courts Service Strategic Plan 2017-2020 (“the Strategic Plan”), plans are already in place to increase investment in the use of technology in our Courts system. In particular, some of the noteworthy objectives identified by the Courts Service in the Strategic Plan was the progression of the “online digital model for filing court documents (eFiling) in areas such as eLicensing [and] the new legal cost adjudicator regime” and the development of “accessible systems that exploit the potential of centralisation, standardisation and online tracking in areas such as debt claims on line, legal aid and jury summons”. Some pilot services have already been rolled out through the Courts Service Online (“CSOL”) system including eLicensing (whereby currently legal firms who have licensing applications for premises in counties Donegal, Sligo, Leitrim and Louth can lodge, pay and track applications for licensing online and collect their licensing Court Orders) and in cases where parties are legally represented, Phase 1 of the High Court e-lodging of Applications for Legal Costs Adjudication and Phase 1 of e-lodging of Applications for Leave to Appeal in the Office of the Supreme Court. In addition, once they are registered with CSOL, applicants can now also lodge and track applications for the Small Claims Court online.
Having regard to the experiences of e-filing and e-courtrooms in other common law jurisdictions, it is clear that there are numerous advantages to embracing these practices in this jurisdiction. In particular, e-filing permits self-represented litigants and legal practitioners alike to file and access documents remotely and instantly, providing for efficient and cost-effective litigation. In addition, from an environmental perspective, the procedure allows for a sustainable approach to litigation. Overall, the challenges faced in progressing litigation in recent weeks due to restrictions adopted by the Government to reduce the spread of Covid-19, and the flexibility displayed by the legal profession and Courts Service alike in responding to same, provide a convincing argument that this jurisdiction is ready to embrace technology.
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 For example, the acceptance by the High Court of consent orders by email and the making of those orders without the need for parties to attend Court and the remote handling of case management issues in the Supreme Court and the Court of Appeal
 which has a monetary jurisdictional limit of $100,000
 the jurisdiction of which includes family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices,
 which include the Insolvency and Companies list, the Commercial Court and the Property, Trust and Probate list
 which handles cases involving, inter alia, personal injury, negligence, breach of contract and debt claims
 From mid-2020, all legal firms nationwide will be able to avail of all eLicensing online services