The courts in the time of COVID-19: Skype in the Court of Protection

Following the restrictions on personal movement arising from the continued spread of COVID-19 and the Prime Minister’s broadcast, the Lord Chief Justice reviewed the conduct of court hearings in England and Wales.

In respect of hearings in County and Family Courts the LCJ has stated the following:

“No hearings which require people to attend are to take place in any County or Family Court until further notice, unless there is a genuine urgency and no remote hearing is possible. All cases currently being heard should be adjourned part heard so that arrangements can be made, where possible, to conduct the hearings remotely”.

The Lord Chief’s directions did not address the Court of Protection but, in the opinion of The Honourable Mr Justice Hayden Vice President of the Court of Protection, exactly the same measures should be extended to it. Accordingly, no hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing.

The extremely complex case that Mostyn J has recently conducted entirely by Skype conference illustrates the fact that even cases of “genuine urgency” may be heard remotely.

The case is a serious medical treatment application brought by a clinical commissioning group (CCG). A dispute had arisen as to whether or not it was in the best interests of A, a man in his 70s who had suffered a stroke in 2016, to continue to receive clinically assisted nutrition and hydration (CANH).

In itself, this would be an unusually sensitive case for the Court of Protection (CoP), and Keehan J listed it for four days, including a day of judicial reading time. What makes this case even more unusual is that the judge listed it to start on Tuesday 17 March 2020, less than 24 hours after Boris Johnson had told the nation to avoid all non-essential contact in the bid to stem the rising tide of COVID-19.

Mostyn J called an urgent telephone hearing with the parties on the morning of Tuesday 17 March to discuss whether the hearing could realistically go ahead in Nottingham Civil Justice Centre, and if not, whether conducting the trial remotely was permissible. He determined that the hearing should go ahead and asked the lawyers to find a way of doing so over Skype.

One of the parties’ solicitors set up a Skype for business meeting which everyone could join via laptop or tablet. With a very slight extension to the court day (starting at 10am and finishing on two days at 5.30pm), the hearing was finished in three days, and the judgement is now being awaited.

As a result, judicial time was not wasted, nor a hearing listed for four months lost. The sensitive and difficult case was not adjourned, possibly for months and months. No one had to compromise their health; before and during the hearing, some involved were self-isolating, with no impact on the trial. No one had to travel or stay overnight, saving significant costs, public money in this case. Even with an extended court day, all the lawyers involved saved a huge amount of travelling time.

This may well be the way forward for the next few months. Skype for Business looks to be on the way out for Microsoft, to be replaced by Teams, but it is clear that the judiciary are also prepared to consider other ways of conducting remote hearings such as Zoom: guidance just published for the Civil courts refers encouragingly to a ‘non-exhaustive’ list.

For further questions in relation to the above article, please contact James Cohen directly on [email protected] or 0207 822 2257.

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