Remote Hearings In The Time Of Covid-19

In light of the Covid-19 pandemic and movement control measures having been implemented in many countries around the world, lawyers in Malaysia and elsewhere are seeing changes in the manner in which the administration of justice is dispensed. Without being able to conduct hearings and trials in a physical courtroom, the courts are now taking matters remotely and virtually in order to ensure access to justice remains available to the public, despite the ongoing pandemic.

On 23 April 2020, Malaysians saw for the second time a live broadcast of court proceedings wherein the Court of Appeal live streamed three appeals for the public to view. The first ever live broadcast of court proceedings was in 2009, during the Teoh Beng Hock inquest proceedings. The recent Court of Appeal hearing was, however, novel in that the proceedings were conducted entirely remotely as the parties involved were not located in the same courtroom, unlike the inquest proceedings which was live streamed from one location, where all parties involved were present in the same courtroom.

Could the recent virtual Court of Appeal proceedings then pave the way forward for future court proceedings in Malaysia during the course of the Covid-19 pandemic?

This article will provide a brief overview of the shift towards remote hearings and the measures that have been implemented in Malaysia to accommodate this thus far. The approach in other jurisdictions in relation to remote hearings, in particular England, Australia and Singapore, will also be considered below.

Malaysia

With the Movement Control Order coming into force on 18 March 2020, the courts nationwide were closed and all hearings, appeals and trials which had been fixed before the courts were adjourned. However, the judiciary allowed parties in civil cases to apply for court proceedings to be conducted remotely by way of the court's e-Review system, exchange of e-mails or video conferencing, where consent of parties and leave of court had been obtained. These were limited to ex-parte and inter-partes matters which were filed with a certificate of urgency at the High Court and subordinate courts.

Subsequently, with the extension of the Movement Control Order by the Malaysian Government, the courts then expanded the scope of proceedings which can be conducted remotely to include interlocutory appeal hearings, uncontested interlocutory applications which included, amongst others, hearing of interlocutory appeals, applications for amendment of pleadings, ad interim injunctions, striking out applications, judicial review, leave to enforce judgment, registration of charge under the Companies Act 2016 and warrant for arrest of vessel; contested interlocutory applications which are brief and short, and appeals to the Judge in Chambers from the decision of the deputy registrar or senior assistant registrar. Parties can also apply for post-trial decisions and mediation to be heard online.

The judiciary also introduced its own guidelines for the conduct of remote hearings by way of video conferencing, which includes bandwidth requirements, the applicable online platform (Skype for Business or Skype is recommended and Zoom is disallowed by the courts), conduct of parties during the hearing (parties must observe courtroom etiquette during the hearing) and preparation and conduct of the hearing (such as the requirement for all relevant documents to be filed by way of e-filing and a trial run of the remote hearing is to be conducted to iron out any issues). To date, the courts have been regularly conducting hearings remotely via video conferencing and exchange of e-mails.

With the Conditional Movement Control order now in effect, the courts will recommence hearing cases in open court in stages from 13 May 2020 onwards. In this regard, the judiciary has issued a 'Guidelines of Court Operations During the Conditional Movement Control Order Period and Post-Movement Control Order' dated 8 May 2020 and two Press Releases dated 11 May 2020, that is, the 'The Judiciary's Standard Operating Procedures (SOP) During The Covid-19 Pandemic' and 'Court Operations Beginning 13 May 2020'. The salient measures that have been implemented by the judiciary are that the hearing of cases will be set at staggered timings and a notice regarding the status of cases will be issues to the relevant parties prior to the hearing date; only two lawyers per party are allowed to be present in court for a hearing (including pupils in chambers) and in the event more lawyers are needed, an application must be made to the court complete with justification, prior to the hearing date; and social distancing is to be practised in accordance with the guidelines. The judiciary has also stated that online hearings are encouraged and all case management will be conducted online for those courts with the e-Kehakiman system.

In anticipation of the move towards remote hearings, efforts have also been made by a group of legal practitioners in Malaysia to produce a Proposed Remote Hearing Protocol, which in essence provides guidance to lawyers and practitioners as to how to conduct remote hearings. The proposed protocol highlights some key considerations for conducting remote hearings and they are as follows:

1. Access to hardware and software - whether all parties are sufficiently equipped with broadband connectivity and the necessary devices such as a microphone, camera and earphones in order to conduct a remote hearing efficiently.

2. Proceedings involving witnesses - Witnesses can give evidence from an independent remote location in the presence of an independent supervising officer, who is directed at all times by the court, to minimise the risk of witness tampering.

3. Communication within teams - In addition to the main hearing, there may be a need for a separate communication platform for legal teams to discuss matters internally during the hearing. This can be done via a WhatsApp group or Microsoft Teams chat.

4. Navigating bundles of documents during a virtual hearing, especially voluminous bundles - It is likely that physical bundles of documents may not be readily available to the courts during this time. As such, the importance of navigating bundles of documents efficiently and without hiccups is paramount. This involves consistent pagination of bundles, proper referencing to each bundle and volume of bundles for the court.

5. Recording of virtual proceedings - No recording of the remote court proceedings ought to be done without first obtaining leave of court.

6. General conduct of parties during virtual hearings - Similar to the usual way of conducting hearings in a physical courtroom, counsel must ensure that he or she and all relevant members of the team are appropriately dressed in Chambers attire and observe the formality of the occasion.

It is likely that in applications for remote hearings before the courts, these are the salient considerations to be taken account in deciding whether or not hearings or trials ought to be heard remotely. These considerations are also consistent with the authorities in England and Australia, as discussed below.

England

Unlike Malaysia, the English courts are empowered to conduct remote hearings pursuant to the Coronavirus Act 2020 and the English Civil Procedure Rules (CPR). The new Practice Direction 51Y expressly provides that where the court directs that proceedings be conducted as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.

Similar to Malaysia, there is a protocol relating to the conduct of remote hearings in court, that is, the Civil Justice's "Protocol Regarding Remote Hearings" ¹. This protocol sets out basic guidance as to the conduct of remote hearings by civil courts, particularly the legal issues to be addressed before any remote hearing can begin which relate to (a) whether the hearing is to be in public or private; and (b) recording of the hearing, various steps to follow when a remote hearing is fixed, the manner in which the remote hearing is conducted and preparations for the hearing.

The following authorities shed some light on the English courts' approach in dealing with remote hearings:

1. Remote hearing held to be appropriate - The Deputy High Court Judge in Re One Blackfriars Ltd (in liquidation) Hyde and another (joint liquidators of One Blackfriars Ltd) v Nygate (in his capacity as representative of the estate of James Joseph Bannon) and another [2020] EWHC 845 (Ch) agreed with the respondent's submissions and refused to adjourn a five-week trial of a claim by joint liquidators against former administrators of a company. The court refused the application to adjourn the trial and the parties were ordered to prepare for trial to be conducted remotely.

In arriving at his decision, the learned judge considered, amongst others, the following issues:

1. Safety - It was the claimant's position that there were two or three participants of the trial who fell into the category of a 'vulnerable person' and that two of the expert witnesses that the claimant wished to call may be responsible for looking after other members of their household and may therefore struggle to participate in a trial. The learned judge rejected the claimant's submission that an adjournment of the trial was necessary on safety grounds, and was of the view that the court had little concrete evidence of the particular difficulties that the participants to the trial may have and the extent of these genuine difficulties, if they exist at all. With regard to the experts, the learned judge further held it was possible for alternative arrangements to be made such as completing expert memoranda and the exchange of short supplementary expert reports.

2. The technological challenge - The claimant submitted that there is no tried and tested technology which can deliver a fully remote trial, with each participant located in a different location. The learned judge rejected the claimant's arguments as he was not satisfied that the technological challenges were so great as to make it appropriate to adjourn the trial. The judge then ordered parties to co-operate in seeking potential remote trial platforms and document handling systems, and to inform the court of these 'realistic arrangements'. The learned judge further held that any proposed system by the parties would be subject to robust testing from as many locations from which the participants are likely to be giving evidence and to ensure that documents can be displayed quickly. Additionally, the issue of broadband connection and bandwidth was also essential and the learned judge suggested that it may be preferable for witnesses to travel to a locations close to their homes, such as solicitors' offices with dedicated servers and IT staff on hand.

3. Equality of arms - On this issue, the learned judge held that this litigation was between well-resourced sophisticated parties which had excellent legal teams. As such, there was equality of arms in that the challenges and upsides of proceeding with a remote trial will apply to both sides equally.

2. Remote hearing held to be inappropriate - In Re P (a child: remote hearing) [2020] EWFC 32, the issue of ongoing care proceedings relating to a seven year old girl was at the forefront. There were, amongst others, a series of allegations by the local authority that the girl had been caused significant harm as a result of Fabricated or Induced Illness (FII) by the mother. In light of the Covid-19 pandemic, the issue that arose was whether the hearing which had been fixed some time ago, could be properly or fairly conducted remotely without the mother's physical presence before a judge in a courtroom where such allegations can be properly cross-examined and tested by detailed evidence.

The learned judge held that given the nature of the case, it would not be appropriate to conduct the hearing remotely. In particular, the learned judge was of the view that whilst the cross-examination and the assimilation of the detailed evidence from the e-bundle and the process of witnesses appearing over Skype would be manageable, the more important part was for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, in order for the judge to make a full judgment.

3. Remote hearing held to be possible - In Muncipio De Mariana & Ors v BHP Group Plc [2020] EWHC 928, the dispute between parties related to the collapse of the Fundao Dam in Brazil in 2015. The defendants were seeking a stay of proceedings before the Technology and Construction Court as court proceedings had already been launched in Brazil. However, in light of the Covid-19 pandemic, two issues had arisen. Firstly, whether there should be an extension of time for the gathering of evidence because of the pandemic and secondly, whether the jurisdictional dispute could be fairly resolved by way of a remote hearing.

In relation to the first issue, the learned judge allowed an extension of time for the defendants to gather evidence. In doing so, the judge accepted that there would be difficulties in working remotely. For instance, the expert witnesses were based in Brazil, which has also been placed under lockdown and as such, did not have access to staff and library. In relation to the second issue, the learned judge considered that as there would be no live evidence involved and the determination of the issue would involve parties' skeletal submissions and oral arguments, it is a matter which would be capable of being fairly determined in a remote hearing.

Pertinently, on the approach to be taken in relation to remote hearings, the learned judge had relied on previous authorities including Re One Blackfriars Ltd and identified key principles regarding remote hearings namely, amongst others, that regard must be had to the importance of continued administration of justice in that justice delayed is justice denied and that the question of whether fair resolution is possible by way of a remote hearing will be case-specific.

Australia

During the Covid-19 outbreak, courts in Australia have remained operational albeit subject to numerous restrictions at all levels across multiple jurisdictions. The national courts, the High Court of Australia ² and the Federal Court of Australia ³ have set out arrangements to conduct interlocutory hearings, trials and appeals remotely by video-link or telephone conferencing. It appears that the courts are inclined to dismiss applications to adjourn a hearing simply due to the difficulties of remote technology and parties have been required to show that some level of prejudice or unfairness will occur. This is illustrated by the following authorities:

1. Remote hearing held to be appropriate - In Capic v Ford Motor Company of Australia Limited [2020] FCA 486, the Federal Court refused an adjournment application by the respondent which was made on the basis of the difficulties associated with a virtual hearing including technological limitations, physical separation of legal teams, cross-examination of expert and lay witnesses, document management, extended trial length and expense. The applicant on the other hand submitted that the technology is such that the trial can now realistically proceed. The Federal Court considered two factors in particular which was the need for practitioners, witnesses or court staff to work from home and that public institutions such as the court must do all they can to facilitate the continuation of the economy and essential services of government including the administration of justice. The Federal Court acknowledged the difficulties but ultimately held that these issues would not lead to an unfair or unjust trial and that to adjourn the trial because of the pandemic may result in an adjournment for an indeterminate period of time.

2. Remote hearing held to be inappropriate - Quince v Quince [2020] NSWSC 326, concerned an allegation that certain transfer of shares purportedly executed by the plaintiff were forged. It was held that due to the seriousness of the allegation, lack of corroborative evidence, and the equivocally opposing handwriting expert evidence procured by both parties, the demeanour of the witness would play a very significant part in determining the allegation and therefore, cross-examination could not be adequately carried out via video-link. As such, to impose the regime of conduct by video-link was antithetical to the administration of justice if said regime were to work an unfairness upon any party.

Singapore

As an extension to their pre-existing practices of attendance by video link prior to Covid-19, the position in Singapore in similar to that in Malaysia. The courts in Singapore have implemented additional measures via guidelines and circulars to allow more matters to be heard by teleconference, video conference, written submissions and e-mail so as to sustain access to justice while maintaining safe distancing. ⁴

To this end, only matters listed as essential and urgent are to be heard and such hearings would be conducted through electronic means of communication without requiring physical attendance in court. This includes a range of specified criminal and civil matters. For matters which are not listed as essential and urgent, parties may request for an urgent hearing and the court may exercise its discretion and grant the request. At the time of writing, there are no reported judgments on said applications.

Moving Forward

With the Conditional Movement Control Order now in effect, the courts will gradually open its doors and matters which were previously fixed for hearings prior to the Movement Control Order can proceed from 13 May 2020 onwards. Whilst the judiciary has stated that online hearings are 'encouraged', there have not been any additional guidelines or standard operating procedures in its latest notice. As such, it is likely that the judiciary's previous guidelines in relation to online hearings remain applicable during the Conditional Movement Control Order.

If this is indeed the case, it remains that a party applying to court to conduct a hearing remotely must obtain consent from all relevant parties. In reality, this may not be entirely practicable as the applicant may be faced with a situation where his or her opponent deliberately withholds consent in order to delay the proceedings or where there are a large number of parties involved and it would not be practicable to obtain written consent from each party. Whilst this measure may be adequate at present, it may not be entirely workable in the long run and for this reason, there needs to be in place proper measures for remote hearings to be conducted, to avoid any further delays in court proceedings. These may include amendments to the Rules of Court 2012 (for civil proceedings) to empower courts to exercise its discretion to conduct remote hearings of its own motion where appropriate.

Despite the easing of 'lockdown' measures in Malaysia since 4 May 2020 and with the Covid-19 pandemic expected to last for some time or at least until a vaccine is available to the masses, it is likely that lawyers will continue to see a surge in court proceedings being conducted remotely. It is a practice that the judiciary and the Bar will have to adapt to quickly to enable the administration of justice to be continued in these times.

Apart from the impact on court proceedings, the issues and considerations set out above would similarly be applicable to arbitration practitioners and proceedings. Given the travel restrictions forcing many countries to close their borders for the unforeseeable future, remote hearings will likely be utilised more frequently in arbitration proceedings especially where members of the arbitral tribunal and parties themselves reside in different parts of the world. It is therefore clear that a necessary reaction to the worldwide outbreak is for the dispute resolution community to consider other means of administering justice through remote and/or virtual hearings.

This article is written by Siew Suet Mey (Senior Associate) and Laarnia Rajandran (Associate) of Skrine.

Footnotes

Originally published 12 May 2020 .

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.