Conducting Trials Online During Covid-19. Yay or Nay?
Covid-19 has, at some point in time, but the world to a standstill. With no end in sight (yet), business and government bodies have little to no choice but to put on their creative hats and find alternate ways to continue to operate. The legal system in Malaysia is no exception– trials are finally being conducted online in Malaysia.
In today’s article, we will briefly look at the English case of Re Blackfriars Ltd (in liquidation) which briefly touches on the issue of conducting a trial online.
Brief facts of the case
In this case, the current liquidators of Blackfriars Ltd brought an action against the former administrators of the company. They alleged that there was misconduct on the part of the former administrators (the company’s assets were sold at an undervalue)- had they complied with their duties as an administrator, the company might have been able to claw its way out of administration.
The case was due to be heard in June. However, with the ongoing Covid-19 pandemic and the restrictions (or ‘lockdown’) introduced by the UK government, the lawyers for the current liquidators felt it was appropriate to adjourn the case until it is safe for the matter to be heard in court.
The parties’ contention and the decision of the court
Lawyers for the current liquidators gave 4 reasons as to why the matter should be adjourned. For the purpose of this article, we will focus only on two of them, namely:
- The matter cannot proceed without exposing participants and others working behind the scenes to an unacceptable risk to their health and safety; and
- The technological challenge posed by a five-week trial was too great. Such technology, as exists, he said, was untested.
Lawyers for the former administrators argued that the current liquidators had lost faith in their case and are merely using the pandemic as an excuse to delay the trial.
The court agreed with the lawyers for the current liquidators, stating that the concern raised is a genuine concern. However, the court did not entertain the application and instead asked both parties to explore avenues to conduct and proceed with the trial remotely i.e. online.
The concerns of proceeding with a trial remotely/ online
- The safety of the participants in the trial
As mooted by the lawyers for the current liquidators, a remote trial must not endanger the health of any participants or, indeed, anyone else involved in the trial behind the scenes. Specifically, this applies to participants who are more vulnerable/ susceptible to the virus, such as elderly people.
- Technological challenge
Not everyone has the adequate means to participate in a trial online. As noted by the lawyers for the current liquidators, there are no tried and tested technologies that can fully adequately facilitate a remote trial with participants in different locations to ensure that remote hearings are not being prejudiced by insufficient bandwidth being available to judges and parties connecting from diverse remote locations.
Can the concerns be circumvented?
Yes, the court held that:
- As long as everyone has the common sense to adhere to safe social distancing rules, certain risks can be mitigated.
- If there is no necessity in calling in certain witnesses (especially those in the vulnerable group), parties are expected to co-operate and to propose ways in which issues can be tried without the involvement of those particular witnesses.
- Witnesses can travel (provided that the safe social distancing rules are observed) to a few locations as close as possible to their home, such as solicitors’ offices or other premises, with dedicated servers and IT staff on hand, rather than to dial in from home without any assistance. This, as the court puts it, would potentially alleviate the anxiety that many people suffer from, including judges, when it comes to the moment of being dialed into proceedings and to being interrupted in the course of the proceedings by unexpected household events.
As the court puts it, the procedures to conduct a trial remotely/ online can be amended/ adjusted to ensure that a trial can run as per normal. While it is not completely a foolproof method, it is currently a solution to ensure that justice is not being put to a standstill.
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