Whilst imperfect in many ways, this solution comes with many advantages, particularly in the offshore world where parties, and sometimes their lawyers or even judges, are not resident in the territory where the case is to be heard. The ability of counsel, witnesses or experts to attend hearings from their home jurisdictions provides time and cost savings, not least for those of us based in Asia. In this feature we shall take a look at how our jurisdictions are managing the process.
Until relatively recently, the court process was based exclusively on printed originals, paper copies, physical attendance and traditional formalities (including appropriate dress – and wigs – and sitting, standing and bowing at the appropriate time).
Over the last ten years or so, the courts have allowed greater flexibility and, with the general move from physical to computerised records, allowed documents to be filed electronically, rather than requiring attendance with multiple copies at a registry counter. It became more common for hearings to be conducted wholly or partly remotely, or for observers (such as the parties themselves) to watch the proceedings by dedicated video-link.
In the offshore courts there have been some particular features that led to greater adoption of remote hearings. It is not uncommon in some jurisdictions for the parties to instruct Queen’s Counsel based in London to appear. For a short hearing, or one convened as a matter of urgency, it was not unusual for the courts to allow counsel to dial in by telephone. In the Cayman Islands, some of the judges in the Financial Services Division sat part-time, continuing with their legal practices in London. They might therefore hear cases remotely, sitting in London with counsel appearing from Cayman, or even sitting together with London-based counsel, with a remote link to the physical court in Cayman.
The substantial damage to infrastructure caused by Hurricane Irma in BVI in 2017 also led to a greater use of remote processes in that jurisdiction.
In these circumstances, the arrival of the Covid-19 pandemic in February/March 2020 was not the first time that the courts moved towards greater adoption of remote processes. As a result, the move happened quickly and effectively and in most jurisdictions with little impact on the ability of the courts to get through cases. In the following sections, we look in more detail at how the courts have been working in Bermuda, the British Virgin Islands and the Cayman Islands, in the Crown Dependencies of Guernsey, Isle of Man and Jersey, and in Mauritius.
Bermuda
The position of the court process in Bermuda, in light of the pandemic, is as follows:
Filing of documents
The Supreme Court and Court of Appeal continue to require hard copy documents and bundles to be filed with the court, and the issued documents must be physically collected from the Registry. Furthermore, it is mandatory for anyone entering the Registry to wear a mask.
Litigation searches
Litigation searches may be conducted physically at the Registry by scheduled appointment only. A covering letter and search praecipe with the requisite stamp duty must be filed with the court to perform a litigation search. The Registry will then confirm the time to inspect the file via email or telephone call.
Hearings
The Supreme Court has adopted a hybrid position with hearings taking place both in person and via video link. Hearings that can be conducted in person are subject to mask-wearing and social distancing protocols with a maximum of ten persons in attendance (this number inclusive of the judge, clerk, and parties’ counsel).
Where the hearings involve foreign counsel or witnesses, the court has facilitated hearings over video link. The parties involved are sent an e-invitation to join the hearing and once on the hearing platform, all parties are to remain on mute unless it is their turn to speak.
The Court of Appeal judges are predominantly based overseas and so the Court of Appeal hearings have been conducted exclusively through video link. The exception to this is for handing down hearings which are capable of being conducted by a Court of Appeal judge who is present on island in which case counsel may be required to attend in person.
Both the Supreme Court and Court of Appeal have arranged for live transmission of the video link hearing via a YouTube page for clients to be able to view the hearing.
British Virgin Islands
Filing of documents
Following Hurricane Irma in 2017, the Civil Registry and Commercial Division established an electronic filing system. This remained in place as the court infrastructure was repaired and was therefore already in use when the pandemic struck.
Interlocutory hearings
Since March 2020, all interlocutory hearings in the Commercial Division now take place by video-link. The parties’ lawyers attend via Zoom, with the judge often (but not invariably) sitting in chambers at the court building. The judge will usually require a physical bundle of the relevant documents, which is sent down to the court a few days before the hearing. Zoom hearings are attended by the Court Reporting Unit and transcripts are available in the usual way.
Trial
The pandemic has not resulted in any significant disruption to the court’s diary, and the Commercial Division has dealt with its full trial calendar since March 2020, all conducted remotely via Zoom video-link with the judge sitting in chambers. Trials are open to the public by obtaining the Zoom details.
In most of these cases, leading counsel have attended electronically from London, supported by instructing BVI lawyers sitting in BVI, as well as Hong Kong and Singapore. The witnesses have given evidence from a range of jurisdictions, including Australia, Hong Kong, Malaysia and Macau. The court has also adapted by adjusting its sitting times, so that trials will be conducted over a longer period, but at times convenient to the witnesses (for example from 8am to 12 noon). Bundles are generally electronic although the judge will have a physical copy and counsel and the witnesses will also generally work from physical copies.
The BVI court has maintained a degree of formality, with counsel generally in formal court dress.
Court of Appeal
The Court of Appeal has also, since March 2020, sat remotely via Zoom.
The Court of Appeal of the Eastern Caribbean Supreme Court is based in St Lucia but travels to the other eight jurisdictions of the court on a regular basis, so that it would usually sit in BVI for one week at a time, three times per year. The pandemic has forced the court to work on-line and the judges therefore and sit separately during on-line hearings, with breakout rooms available to facilitate discussions between them.
A helpful side effect of the pandemic has been that because the court is not restricted by flight schedules, it is able to accommodate ad hoc sittings on a more regular basis, resulting in a prompt determination of heavy matters.
Cayman Islands
Filing of documents
Following the Cayman Islands’ lockdown in March 2020, the Cayman courts established an electronic filing system. Initially, this simply involved filing documents with the courts by email. However, the move to electronic filing has become more permanent with the implementation of an online electronic filing platform.
Interlocutory hearings
The Cayman Islands has always had an ability to conduct interlocutory hearings by video link. This is because a handful of the judges here do not reside full time in the Cayman Islands, and split their time between the Cayman Islands and the United Kingdom. However, since March 2020, the frequency of interlocutory hearings via video-link since has increased significantly.
The parties’ lawyers attend via Zoom, with the judge often (but not invariably) sitting in his/her home/office. The judge will usually require a physical bundle of the relevant documents, which is sent to the court/the judge’s office between 3 to 5 days (depending on the length of the hearing) before the hearing. The judge and all parties are also provided with electronic bundles. Zoom hearings are recorded.
Trial
The pandemic has not resulted in any significant disruption to the court’s diary, and the Financial Services Division has dealt with its full trial calendar since March 2020, conducted remotely via Zoom video-link with the judge sitting in chambers (or in the United Kingdom if applicable), or in person (if possible).
In most of these cases, leading counsel have attended electronically from London, supported by instructing Cayman Islands lawyers sitting in the Cayman Islands, as well as the United States and Hong Kong. The court has also adapted by adjusting its sitting times, so that trials will be conducted over a longer period, but at times convenient to the parties/leading counsel (for example from 8am to 12 noon). Bundles are generally electronic although the judge will have a physical copy and counsel and any witnesses will also generally work from physical copies.
Parties and the press are able to obtain the access details for Zoom hearings from the Court where appropriate. The courts also stream public hearings on their website.
Since lockdown in the Cayman Islands has ended, the Cayman courts are now also conducting hearings in person in the ordinary course. This means that hearings in the Cayman Islands can now take place in one of three forms: (1) all counsel and the judge physically present in court in the Cayman Islands; (2) some counsel and witnesses physically present in court in the Cayman Islands and some attending by Zoom; or (3) all parties attending by Zoom.
Court of Appeal
The Court of Appeal has also, since March 2020, sat remotely via Zoom.
The Cayman Islands Court of Appeal is comprised of a panel of justices and president who reside in the United Kingdom. The pandemic has forced the court and the justices to work on-line and sit separately during on-line hearings, with breakout rooms available to facilitate discussions between them.
A helpful side effect of the pandemic has been that because the court is not restricted by flight schedules, it is able to accommodate ad hoc sittings on a more regular basis, resulting in a prompt determination of heavy matters.
Members of the public and press are able to view Court of Appeal proceedings by obtaining the Zoom details from the court. Public hearings are also streamed live from the Court of Appeal’s website.
Guernsey
The Bailiwick imposed a strict lockdown at the beginning of the pandemic and quickly gained control of the spread of the virus. From June 2020, residents enjoyed a “Bailiwick Bubble,” with most of the freedoms of a pre-Covid life (subject to a stringent border control policy). Having adapted quickly to remote working at the outset, the courts were fortunate to be able to work in their pre-Covid ways for the remainder of 2020. A second lockdown began on 23 January 2021, requiring the courts to revert to some of the policies and procedures successfully employed during the first lockdown.
Filing of documents
At the beginning of 2020, the Royal Court initiated a digital filing trial. The intervening Covid‐19 pandemic showed beyond doubt the value in digital filing which helped to keep the Royal Court running during that time. The filing processes which were adopted during the first lockdown in 2020 and which were deemed to be more efficient than pre-Covid practices have in the most part been continued. After the first lockdown, the courts decided that it would be beneficial to keep the digital filing of papers for the Friday Court in place and to extend it to other courts in due course. As noted above, Guernsey is now in its second lockdown and digital filing for all courts has been reinstated.
Interlocutory hearings
The courts are still functioning and every effort is being made to deal with the most critical matters and hold interlocutory hearings via MS Teams where possible.
Trial
The most recent Royal Court guidance states that the court is open and is currently dealing with essential and urgent business but where possible is seeking to adjourn other matters. The courts are nevertheless still functioning and holding hearings via MS Teams.
Court of Appeal
The Court of Appeal sat throughout 2020 and efforts are being made to conduct virtual appeals where it is not possible to conduct them in person.
Jersey
E-filing of documents
The Royal Court of Jersey had already instituted e-filing of documents with the Judicial Greffe (i.e. the Court registry) prior to the pandemic. However hard copy documents, including bundles for hearings, still also need to be filed.
Hearings
Hearings in the Royal Court are taking place as normal, with all parties physically present, but with social distancing measures in place within the courtroom. The court has been willing to facilitate the giving of evidence by videolink where the witness is not able to travel to Jersey because of Covid-19 restrictions. The court has also been willing to facilitate a video feed to allow parties to watch a hearing (without participating), but only where this is absolutely necessary. Ideally the court prefers such a link to be established with a law firm or similar rather than with an individual at home, particularly where the matter is being heard in private, in order to maintain appropriate control over the proceedings.
Foreign counsel
Only Jersey Advocates have rights of audience before the Royal Court, and therefore the question of English or other counsel appearing in hearings by video link does not arise. The court will allow English counsel or instructing solicitors (where they are assisting Jersey counsel) to watch the hearing by video link but not to participate.
Court of Appeal
The Court of Appeal is sitting as normal, with all parties physically present (albeit occasionally one or more of the judges is present via videolink, and the court will facilitate this).
Isle of Man
Back in March 2020, the Isle of Man departed from the UK strategy for control of Covid-19. The Isle of Man closed its borders and pursued an elimination followed by exclusion strategy. After an initial lockdown, Isle of Man community transmission of Covid-19 was eliminated and life within Isle of Man borders reverted to normal from June 2020, without social distancing or other Covid-19 related restrictions. Border controls were eased slightly so residents could travel with a period of isolation on return, but have stayed almost closed to non-residents. In the event of a return of community transmission (as occurred in early January 2021) a “circuit break” lockdown is likely to be applied.
Filing of documents
Outside of a circuit break lockdown, the public counter at the court building is open to advocates and the public for filing in the usual fashion. Electronic filing of large documents is generally discouraged.
In the event of a circuit break lockdown, electronic filing has been permitted, but filing of court documents is still possible by physical delivery to the court mail box. Hard-copy documents and files, delivered to the courts, will be collected at regular intervals. Documents for distribution to advocates and litigants in person will be posted on a daily basis, taking account of the possibility that a document may be sent electronically if urgent.
Trial/Interlocutory Hearings
Outside of a circuit break lockdown, court hearings are taking place in person and without social distancing. Given the closure of the border to non-residents, the court has been permitting UK counsel and/or clients (who would otherwise attend hearings in the Isle of Man) to join by video/audio link (on mute) to follow proceedings.
In the event of a circuit break lockdown, the court has remained open for socially distanced “in person” court and tribunal hearings. The court has however actively contacted parties with listed hearings during periods of lockdown to ascertain whether they may proceed remotely (by video or audio link) or be adjourned. Where adjourned, consent orders were not subject to court fees. The court has sought to react to the situation in as flexible a way as possible, and provides updates on its www.courts.im website during lockdowns to make court users aware of any changes to their procedures or requirements.
Court of Appeal (Staff of Government Division)
The position for the Isle of Man’s appellate division is the same as for its courts of first instance (see above). However, where members of the judicial panel are based off-island, electronic filing is often encouraged (particularly during lockdown periods) and video technology is used to facilitate the conduct of the hearing.
Mauritius
All cases scheduled before all courts in Mauritius (other than the Court of Rodrigues) during the confinement period from 10 March 2021 to 25 March 2021, are postponed until further notice. In order to ensure the provision of minimum judicial services during that period, urgent matters only will be attended to. For more information please click here.
