The annual report of the Supreme Court was issued on the 14th of April 2020 and concentrated on the just access and efficiencies achieved by the Court during the COVID restrictions including transitions to remote hearings, automation of administration and services, online filing of appeals, the cutting of waiting times and implementation of new rules to make the system more efficient.
As we can image, the report is primarily focused on the difficulties experienced by the Courts during an unprecedented and challenging year. The report details how as soon as it became apparent that COVID-19 was spreading in Europe that the contingency arrangements began to be drawn up. As such the Courts Service was able to put the arrangements into operation on the 12th of March 2020 following the announcement of Government restrictions. These contingency arrangements were envisaged to ensure that urgent family, criminal and civil law matters would continue to be heard whilst ensuring the health and safety of all Court users.
Interestingly, Supreme Court hearings were not delayed significantly this year and a backlog of hearings has not developed, unlike in the High Court and Circuit Court jurisdictions.
The number of applications for leave to appeal brought to the Supreme Court has reduced by approximately 38% in comparison with the previous year. However, it is envisaged that these reductions will self-correct next year as the High Court expands its use of remote hearings for cases such as European arrest warrants, immigration, and environmental cases, which will result in an increase in the number of applications for leave to appeal.
Pexip (virtual meeting room) was the video conferencing solution in place prior to COVID-19. Following successful testing and mock trials, the Court agreed to conduct business on a remote basis using this video conferencing platform. The exploration of remote hearings began in earnest with trial hearings being conducted within a matter of weeks of the COVID-19 restriction announcements. Only one appeal held in 2020 was held in person, being the Friends of the Irish Environment Climate change case. All other appeals were heard remotely.
The Chief Justice conducted the first case management hearing remotely via Pexip on the 28th of April 2020 with the first full hearing of a Supreme Court appeal being held on the 11th of May 2020. This was facilitated by practice direction SC21 on the conduct of proceedings in the Supreme Court for applications for leave, case management, remote hearings, and the delivery of electronic judgements. Practice direction SC21 also allowed for the innovations of the statement of case and clarification rule.
One new procedure introduced by practice direction SC21 in advance of hearings of substantive appeals was a ‘Statement of Case’. This document sets out the understanding of the Court of the background and issues involved in the appeal. The Statement of Case can also be accompanied by a ‘Request for Clarification’ which allows the Court to better understand the precise matters on which the parties differ and upon which the Court is required to decide. This procedure had been in contemplation for some time but was expedited because of the need for greater focus within limited abilities for remote hearings.
From the 24th of March 2020, the procedure of delivering written judgements electronically was introduced. Subsequently the parties were invited to communication electronically with the Courts on any post-judgment issues or any questions concerning costs. If there are issues which cannot be agreed between the parties arising from the Judgment then concise written submission can be filed electronically in the Office of the Supreme Court within fourteen days of delivery of the judgement subject to any direction given by the Court. The purpose of allowing communication and submissions via electronic correspondence is to reduce and/or negate the need for oral hearings on matters which cannot be agreed.
Unless an oral hearing is specifically required in the interest of justice, any issues arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the Courts Service website, which will include a synopsise of the relevant submissions made, where appropriate.
Although the report notes a reduction of 36% applications for leave to appeal it must be noted that the restrictions on all other Courts have had a knock-on effect on the disposal of cases in general.
The lower numbers of cases heard in the High Court and the Court of Appeal as result of the COVID-19 pandemic naturally resulted in a lower of number of applications for leave to appeal brought to the Supreme Court. The report notes that the reduction in cases was significantly higher from the High Court as from the Court of Appeal and may very well increase as the High Court begins to return to its normal level of hearings in due course.
As a result of the fewer applications for leave to appeal to the Supreme Court, the Supreme Court was able to quickly introduce the new procedures and streamline the electronic delivery of judgements such that it is has now reduced its waiting time to a historic low of 14 weeks for a hearing of Supreme Court appeals. The average waiting time from the filing of complete documents in respect of an application for leave to appeal to issue by the Supreme Court of its determination of the application was 5 weeks in the last quarter of 2020, a reduction from 6.5 weeks in the first quarter.
Chief Justice Frank Clarke notes one observation on the effect of remote hearings. He considers that they provide acceptable hearing of almost all appeals, although opines that they are not as effective as the traditional model of physical hearings. This is caused by the inability of representatives to interact fully with Counsel during proceedings. The Court has facilitated this issue by arranging for a break during the hearing.
This difficulty has also been mitigated by more matters being dealt with on paper which reduces the time of the Court hearing of itself but does not reduce the amount of work required by Legal Teams representing parties or the amount of time required by the judiciary to resolve a case. The Chief Justice opines that when the Court comes to review its position when the main restrictions are lifted, that it will undoubtedly give serious consideration to retaining both remote hearings and dealing with issues on paper where it is considered more valuable to retain them rather than returning to the previous status quo.
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