Statement from the Chief Justice
Work continues among the judiciary and the staff of the Courts Service to increase the number of cases which can be heard. This will involve both improvements designed to enhance remote hearings in cases for which such hearings are suitable but also physical and organisational changes designed to permit a greater volume of cases to be conducted in physical courtrooms while complying strictly with all government guidance. I would like to thank my judicial colleagues and the staff of the Courts Service for their outstanding efforts to ensure the continuance of access to justice in urgent cases and to develop new ways of conducting business so as to allow the greatest number of cases to be progressed.
However, the particular purpose of this statement is to deal with the situation in the Supreme Court. A new practice direction was issued on the 16th April. One of the principal innovations addressed in that practice direction involves the Court, in advance of hearing an appeal, in issuing a “statement of case” setting out the Court’s understanding of the relevant facts and issues. That new practice has been immediately implemented and the first three cases deploying that new procedure are due for hearing next week and the following week. In addition, a further six cases have been identified for hearing in the weeks following with an individual judge designated in each case to ensure that the appeal will be made ready for a remote hearing under the new procedure. The parties have been contacted with a view to engaging in further case management to that end.
Furthermore, an additional seven cases have been identified where it is hoped that measures can be put in place to ensure that they too can be made ready for hearing under the new procedure prior to the end of July. Consideration is also being given as to how the limited number of cases involving litigants in person should be managed.
Provided that no unforeseen difficulties are encountered it is hoped that these measures will lead to a situation where almost all cases in respect of which leave to appeal was granted before the end of April of this year will have been heard by the end of July. If that aim is met it will, I hope, be possible to say that the Supreme Court is up to date and that no backlog will have ensued from the crisis.
In making this point I would wish strongly to emphasise that the situation facing the Supreme Court was different to that facing all other courts and in particular the trial courts. Since the establishment of the Court of Appeal in 2014 the primary constitutional role of the Supreme Court has been to hear cases involving important issues. As was mentioned in the Supreme Court annual report for 2019 (published in late February of this year which, frankly, seems like a different age) the legacy of outstanding cases had been substantially disposed of. Further progress with the remaining few legacy cases has occurred since. As a matter practicality the work of the Supreme Court is now confined to a much smaller number of cases. However, those cases are inevitably more complex. A consequence of those developments is that the proportion of the Court’s time spent at actual hearing is likely to be reduced but the work in preparing for the hearing of appeals and the finalisation of judgments will expand. That new model of Supreme Court is particularly suitable for the sort of changes which have either been brought about by or accelerated by reason of the COVID-19 pandemic. The front loading of procedures as already mentioned is only achievable where the volume of cases is manageable. Appellate hearings in cases which have already been, in the main, through two previous hearings and have had their issues thereby refined, are more suitable for remote hearings.
I would like to thank my colleagues on the Supreme Court, the staff of the Supreme Court office and Courts Service staff generally for putting in place what are often radically new processes which have enabled the Supreme Court to potentially put itself in a position of being more or less up to date by the end of July. In addition, my colleagues have been putting a particular effort into finalising reserved judgments during the period when no oral hearings were taking place.
Finally, it should be said that the experience to date both in respect of mock hearings and actual hearings has been that cases have taken somewhat longer than in a courtroom setting and that there has been a reduction in some of the often robust debate between counsel and the Court. It is hoped that the added focus brought about by the “statement of case” procedure may minimise the extent to which hearings become longer. The change in the manner of exchange between the Court and counsel is less than optimal but, in the Court’s judgment from its experience so far, nonetheless satisfactory.
Provided that remains the case it is, therefore, hoped that it will be possible to keep the Supreme Court up to date in its hearing for as long as restrictions last. Whether, and if so to what extent and in what way, the Court may return either generally or in particular cases to physical hearings is a matter which will be reviewed from time to time in the light of the Court’s experience and having regard to government guidance.
Mr Justice Frank Clarke