The Jersey courts and the Covid-19 pandemic

By Simon Thomas, partner, and Lynne Gregory, senior associate at law firm Baker & Partners

THE Covid-19 pandemic forced an almost overnight change to the working practices of the courts in Jersey. Before the pandemic, Jersey’s court service was largely paper based and required advocates and litigants to be physically present in court.

High-value civil actions, for example, were commenced by an initial hearing in the Royal Court on a Friday afternoon (‘Samedi Court’) attended by all parties involved in the cases listed for that week, together with those passing property contracts (including buyers and sellers).

In other areas where the UK has adopted at least some degree of digitisation, Jersey retained a more traditional approach. Documents needed to commence a claim in Jersey generally have to be served on the other side in hard copy, in person by officers from the Viscount’s Department, whereas service in the UK is typically done by email. However, generally there is little technology in the courts themselves, which largely rely on paper files – a court digital project had commenced before lockdown but was at a relatively early stage.

The position when Jersey went into lockdown

The Magistrate’s and Petty Debts Courts were closed just before lockdown, and hearings in those courts were either adjourned or continued via video technology where the defendant was already in custody. Criminal jury trials were halted, while family-court and tribunal hearings were conducted by video or telephone conference, or adjourned if they were not urgent or routine.

Civil hearings in the Royal Court and non-jury criminal hearings in the Royal Court could proceed in exceptional cases, but the public gallery was closed (although members of the media could attend). Samedi Court hearings were largely dealt with ‘on the papers’ (by the judge reading written submissions and deciding the case without hearing from the parties or their advocates orally), or by the judge telephoning the relevant advocate following discussion with the Jurats.

The Jersey Court of Appeal operated a hybrid system – advocates largely attended in person at the Royal Court, but the judges (most of whom were based in England) appeared by video link.

In terms of documentation, all criminal papers had to be filed with the court electronically, as did smaller files in civil trials. However, larger files (or ‘bundles’, as lawyers still quaintly call them) still had to be filed in hard copy.

Claims no longer had to be served in person (indeed it became difficult for the Viscount’s Department to do this when most office receptions were closed) provided the parties could agree on an alternative method of service (usually email).

Comparison with the UK

Courts in the UK shut at the outset of lockdown and have only very recently begun to reopen. Some remain shut.

Remote hearings became more commonplace because of the length of the UK lockdown. While some hearings have worked well, there have been significant problems, particularly outside the commercial sphere where participants are more vulnerable: those who may have no or limited access to or familiarity with the internet, who do not have a quiet and private space, or may not have a laptop or tablet to enable them to follow and participate in hearings remotely.

Other problems include participants struggling with technical issues with limited IT support, the inability for litigants to converse easily and confidentially with their lawyers during the proceedings, and concerns over whether witnesses could be prompted by others when giving evidence remotely (eg being passed notes or perhaps being intimidated by someone else present).

Viewing the proceedings on small screens may also have a practical impact on the ability of judges to assess witnesses’ credibility. In the case of Jones v Ministry of Defence [2020] EWHC 1603 (QB), the judge noted that he had a very clear view of a witness’s face, but not their body – thus non-verbal cues might be missed.

What aspects of the revised Jersey court procedures worked well?

Although it took a few weeks to adjust, the Jersey courts appear to have coped extremely well during the pandemic and the system has fared better than in the UK.

Judges dealt with matters pragmatically, eg by telephoning the parties in advance of Samedi Court hearings to clarify matters and enable orders to be made without advocates having to physically attend court.

While some judges embraced video-conferencing software used by the courts (Starleaf), others found different ways to ensure cases did not get adjourned. Many applications that would normally be dealt with by an oral hearing in the Royal Court were dealt with on the papers instead – this included decisions on costs and applications for leave to appeal, applications which involve only legal argument rather than hearing witnesses.

Our experience was that this worked well for these types of legal hearing: the use of Starleaf for short interim applications where parties are legally represented; the increase in co-operation between the parties; a move to electronic bundles; and certain decisions being made on the papers all appear to us to be sensible developments which could be retained after the pandemic is over.

Difficulties

The fact that this is a small jurisdiction enabled hard-copy documents to be used throughout lockdown (something which would not be possible in the UK, where law-firm offices shut down entirely and where staff often live an hour or more from their offices and judges somewhere else completely). This is partly because the courts do not have document-management software in place to enable a wholesale move to electronic documentation (Jurats are not provided with laptops, for example).

The suggestion by some commentators (particularly in the UK) that online justice should be the new normal going forward appears not to take account of these issues. Even in commercial cases it is generally better for trials (as opposed to interim hearings involving legal argument only) to take place physically, if at all possible. Master Thompson in Trico Ltd v Buckingham [2020]JRC106 ruled that the defendant (one of the two central witnesses in the case) should attend court to be cross-examined despite being close to the age of being a vulnerable person, for example.

Video links are likely to be used more frequently in the future for off-Island witnesses given the restrictions on global travel. The Jersey courts are probably better equipped than their British counterparts in terms of the technology and equipment they have available for remote evidence. Though one witness appearing on a large screen in a physical court room is very different to an entire trial taking place online, the Jersey courts and those who use them should be justifiably proud that the system performed well and flexibly during the pandemic.

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