During the Coronavirus pandemic, the hearing of bulk applications for liability orders in respect of National Non-Domestic Rates and Council Tax was initially halted in most local authority areas, making way for priority matters involving children and people in custody.

As operational capacity became available, HMCTS began listing the bulk hearings remotely by telephone. When the pandemic was ongoing, the reasons for this were obvious. Social distancing, travel restrictions and the advice that vulnerable individuals should self-isolate would have rendered a court list of often hundreds of cases unworkable. The risk of infection to members of the public, council officers and court staff could not have been justified.

Against that background, the benefit of a remote hearing as opposed to no hearing was self-evident.  

Whilst some hearing centres have since moved the lists back to in person hearings, a large number continue to take place by telephone.

Anecdotally, a number of council officers have voiced their support for the continuation of remote hearings and offered a range of reasons for that position.

Advantages

There can be no doubt that there are advantages, particularly for those appearing on behalf of the councils. The time and resource saving, particularly at a time when budgets are tight and staff numbers limited, offered by removing the need to travel to the court building and enabling other tasks to be completed during waiting periods are amongst the most obvious benefits.

The question, then, is that as the pandemic hopefully continues to fade into the rear-view mirror do the benefits that have been enjoyed over the last couple of years justify sticking with remote hearings or has the time has come for a return to the courtroom across the board?

In the same way as remote hearings, dealing with cases in person comes with its own fairly obvious set of advantages.

Cutting out technology is usually atop most people’s lists. The benefits of this, however, extend beyond avoiding the frustration of poor phone lines, bad internet connections, breathing heavily into microphones, talking whilst muted or the inability to connect to a hearing at all. Technology itself has the potential to be a bar to access to justice.

Those without good telephone or broadband connections, or without headsets or speakerphones enabling them to talk whilst having their hands free to make notes and search through papers, can be limited in their ability to participate. Those without a telephone or broadband connection at all, or without the skills to connect to a hearing, would simply be unable to participate entirely. An in-person hearing removes these bars.

Down Sides

Against that, it must be acknowledged that the time, cost and difficulty of travel being avoided is a benefit of a remote hearing for ratepayers. Particularly those in remote areas, in financial difficulty or with mobility issues may prefer the telephone to needing to arrange travel to a hearing centre.

As is picked up prominently in guidance issued by the Judicial College and professional bodies, remote hearings can often create difficulty in both the identification of and implementation of reasonable adjustments for those with disabilities or linguistic difficulties. Those with sensory impairments or requiring an interpreter can experience particular difficulty by phone.

With a focus generally across the litigation sphere on the use of Alternative Dispute Resolution, one particular benefit to attending in person is the ability to have a pre-hearing conference. Any dispute can be explored and potentially resolved by council staff prior to the matter ever reaching the courtroom. That is particularly so where revenues professionals exercising their statutory function will often be willing to adjourn and investigate issues themselves as opposed to insisting on litigation.

Similarly, where there is no dispute, ratepayers who otherwise felt unable to communicate by telephone or in writing can speak with the revenues officer face to face and see whether a repayment arrangement suitable for both parties can be reached.

In this regard the remote hearing provisions fall short, albeit improvements in technology to facilitate digital conferencing as is being trialled in HMCTS’ new Video Hearings Platform may close the gap.

What, then, is the answer where both approaches come with a raft of positives and negatives?

There isn’t one, at least not one that fits all circumstances. Remote hearings undoubtedly have their benefits and provided that court staff and council officers remain alive to the potential need for individual cases to at least have the option to be heard in person, they’ll likely remain for the foreseeable future.

Alex Worthington