As someone who visits the county courts several times a week, it is evident that more and more county courts are back to listing in-person hearings – seemingly without rhyme or reason.

There is currently no guidance from either Lord Burnett, Lord Chief Justice of England and Wales, or Sir Keith Lindblom, Senior President of Tribunals, to help county courts decide which hearings should always be in person; which should usually be remote (unless there is a good reason for it to be in person); and which can always be remote.

Various divisions of the High Court, including the Commercial Court, have published formal guidance on determining the mode of hearing. Lord Burnett issued national guidance for the Crown Court to ‘promote consistency and predictability of approach’ while recognising the need for flexibility and local conditions. County courts, meanwhile, are left to decide – somewhat arbitrarily – whether to list matters remotely or in person.

At least four issues arise out of this lingering ambiguity in the county courts. First, each county court has a different policy on listing remotely or in person, leading to confusion. Some courts have an (inexplicable) policy that all hearings must take place in person. Others have a more hybrid approach. Sometimes a notice of hearing stating ‘remote’ will suddenly change to ‘in-person’, meaning that counsel instructed may be in the wrong part of the country. Given that we know how well remote hearings can work, the fact that more courts are automatically putting hearings back in-person is frankly astonishing.

Second, many parties/witnesses prefer remote hearings. Court is intimidating to most and being in the comfort of their own home can help some participants give their best evidence and put their best case. A remote hearing can more easily accommodate work and childcare commitments. In addition, witnesses and counsel with disabilities often benefit from remote hearings as there are fewer accessibility issues.

Third, if a hearing is listed in person, counsel sometimes has to travel halfway across the country when it can be done just as well – if not better – over the phone/Cloud Video Platform. This wastes parties’ time and money. Often the train fare is not reimbursed. For example, the other week I made a five-hour round trip to Norwich County Court for a small claim which had one issue and was dealt with in 20 minutes. A colleague recounted a story where she and her opposing counsel were asked to attend in person on the morning of a hearing. They arrived at court and in fact the judge was sitting at home, so they had to use a conference room to speak to the judge on an iPad (no parties attending). This absurd situation is sadly not surprising to anyone practising in the county courts.

Fourth, counsel’s and parties’ carbon footprint should be taken into account. We have a duty to do what we can to minimise emissions and courts putting hearings back in person without proper thought completely ignores this factor.

This is not to say that remote hearings work well for all, particularly not all of the time, and can bring other issues such as social isolation. Rather, this is a plea for guidance to be given to county courts so some ‘defaults’ can be set and we can have a measure of predictability on the mode of hearings. The following would make sense for cases in the county court:

  • Small claims, case management conferences, application hearings, directions/allocation hearings and case settlement hearings should be remote by default, unless there is a good reason for them to be in person. There should be a straightforward ‘request’ route where if any party wants an oral hearing they should be entitled to it.
  • Fast-track and multi-track trials would default to in-person, with the facility for parties to, if agreed, put in a request for them to be remote.
  • Possession, bankruptcy petitions and contempt of court proceedings to remain in person.

These suggestions help to further accord the overriding objective. Remote hearings save expense. If witnesses are more comfortable at home, they can give their best evidence. Remote hearings as the default for most uncomplicated matters is proportionate to the importance and complexity of these cases.

Everyone would benefit from clear guidance so that county courts can have a regularised and predictable system that gets rid of the issues that plague counsel and parties whenever they attend court. We must use the lessons we have learnt in the pandemic for better, not for worse.