As a result, the English courts were already relatively well prepared for using technology for hearings, and were able to respond quickly to the additional demands resulting from the pandemic. This is true of the courts at all levels, with the High Court ordering that a full trial can proceed remotely and the Supreme Court hearing submissions and handling down judgments via video.

The courts in England usually use two different platforms: BT MeetMe for audio-only hearings; and Skype for Business where video is required. The courts have largely tried to ensure that hearings still take place wherever possible and have tried to ensure that the public has access to hearings, using YouTube on occasion. They have also issued useful guidance on remote hearings.

Face-to-face meetings between parties and their advisers had already begun to decrease given the increase in flexible and agile working, so the pandemic lockdown has in some ways merely accelerated the inevitable use of virtual meetings. Witness statements can be taken virtually, with an appropriate paragraph inserted dealing with how the statement was taken; and statements can be signed electronically. Some documents, such as affidavits, require a ‘wet’ signature, but this requirement may soon be relaxed and the courts are already showing sympathy for parties who face genuine difficulties in obtaining them.

Innovative law firms are already offering case extranets to their clients to help manage complex disputes, allowing the client and their legal team to collaborate more closely as a team and to share and access important documents when working at different locations. In future, we are likely to see more interest in the use of litigation data analytics to support a data-driven focus on risks, claims and avoiding disputes.

What about arbitration and mediation?

Arbitration, as a contractually agreed method of dispute resolution, has traditionally had more flexibility in the conduct of hearings. As a result, arbitrators and the parties to a dispute can agree to proceed remotely and decide which platform is best for them. Arbitration is very likely to evolve over the next few years, with the increasing use of fixed fee blockchain-driven arbitration in order to streamline the arbitration process by reducing the length and costs of the process.

Parties have tended to delay mediation until it can once again be run face to face. However, the experience of those who have attempted virtual mediations to date is generally a positive one, with settlements still being capable of being agreed. An added layer of security is needed to allow private communications to take place between each party and the mediator, and between each party and their advisers. See our Out-Law guide – remote mediation.

Contact Julian Diaz-Rainey and Andrew Herring for queries in relation to litigation in England and Wales.

Courts in France

An Order of 25 March 2020 permits civil and commercial courts to conduct remote hearings provided that the technology used makes it possible to ascertain the identity of participants; guarantees the quality of the transmission; and guarantees the confidentiality of exchanges between the parties and their counsel. Where it is technically or materially impossible to use such a means the judge may, by decision not subject to appeal, decide to hear the parties and their lawyers, or another person to be heard, by any electronic means of communication, including by telephone.