Court Of Appeal - Notice regarding Remote Hearings - 15/05/2020
Arrangements for Remote Hearings of Civil Appeals During The COVID-19 Pandemic
1. It is essential that the Courts established by the Constitution, including the Court of Appeal, should continue to function to the maximum extent practicable during the Covid-19 Pandemic, consistent with compliance with all applicable public health requirements and the over-riding imperative to protect the health and welfare of Court staff and those involved in proceedings before the Court.
2. The Judges, Registrars and staff of the Court of Appeal have worked with the Courts Service to put in place appropriate arrangements for the conduct of Court business remotely. A number of civil appeals have been heard remotely to date. Criminal appeals have also been heard remotely. Case-management/directions lists, call-overs and lists to fix dates have also been conducted remotely.
3. This Information Notice is concerned with setting out suitable arrangements that will enable the continuing effective operation of remote hearings i.e. where all of the participants, the Judge(s) of the Court, the Registrar, Counsel, Solicitors, Parties, Representatives of the Press and (where practicable) Members of the Public participate remotely, from different physical locations and where the parties communicate by means of video and audio technology.
4. It may be possible in the future, in particular circumstances, to arrange for hearings attended by the parties and their representatives in the normal way and nothing in this Information Notice is intended to exclude that possibility. Any such hearing shall take place only where the Court is satisfied that it can proceed in compliance with all applicable public health requirements and the over-riding imperative to protect the health and welfare of Court staff, those involved in proceedings before the Court and the public.
5. This Information Notice applies to civil appeals of all kinds in the Court of Appeal until further notice. It is very likely that it will prove necessary to update this Notice, given changing circumstances, and having regard to the Court’s experience of how the arrangements for remote hearings continue to operate in practice. Litigants, practitioners and other interested persons should check the beta version of the Courts.ie website (http:/beta.courts.ie/) to ensure that they have access to the latest version of this Information Notice. In addition, the Court may, as appears necessary, publish more detailed guidance, in the form of protocols and/or further information notices, on particular issues arising in respect of the holding of remote hearings by the Court, including technical issues and guidelines for the effective conduct of remote hearings.
6. Practice Direction CA/06, Submissions, books of appeal and authorities in Civil Appeals continues to apply to appeals save to the extent that there is any necessary inconsistency between it and this Information Direction in which case the provisions of this Notice shall apply.
7. The Court will, both through its Civil Users’ Group and otherwise, continue to engage with practitioners and other interested parties in relation to the effective management of civil appeals during the Covid-19 Pandemic.
8. In establishing and putting into operation arrangements for the remote hearing of appeals, it is inevitable that difficulties and challenges will arise. The Court will be sympathetic to the technological and other difficulties experienced by others and expects that everyone involved will be constructive and flexible in their approach, working co-operatively toward the common objective of ensuring that the Court can, to the maximum extent practicable, continue to administer justice and operate fairly and efficiently during the Covid-19 Pandemic.
9. The method by which all hearings, including remote hearings, are conducted is always a matter for the Court, operating in accordance with the Constitution, applicable law, Rules and Practice Directions. Nothing in this Information Notice is intended to derogate from or dilute in any way the Court’s duty to determine appeals heard by it judicially and in accordance with fundamental principles of justice and fairness
Remote hearings: Video & Audio Conferencing
10. There are a number of web-based video conferencing/virtual meeting room platforms and solutions that permit multi-participant real-time video and audio conferencing
11 .The Courts Service has decided to use the PEXIP platform for remote hearings. The Court has successfully used PEXIP to conduct remote hearings to date and Court hearings conducted remotely by video conferencing will continue to be conducted using PEXIP.
12. The possibility of using of other web-based video conferencing/virtual meeting room platforms and solutions is currently under consideration.
13. It may also be practicable to conduct certain hearings, particularly directions hearings, by way of conference call, whether by way of conventional voice telephony, VOIP or otherwise.
14. Directions/case-management hearings will ordinarily be conducted by the President or by a single judge of the Court nominated for that purpose by the President in accordance with Section 7A(6) of the Courts (Supplemental Provisions) Act 1961 (inserted by Section 8(6) of the Court of Appeal Act 2014). References in this Information Notice to “the Court” include, where appropriate, the President or other judge of the Court exercising functions in accordance with Section 7A(6).
Appeals on the Papers
15. It ought also to be possible to determine certain categories of appeal “on the papers” i.e. without any oral hearing and at least one appeal has been dealt with on that basis to date. Appeals from interlocutory orders of the High Court such as orders in relation to discovery would seem likely be suitable for determination in this way. Some applications for summary judgment may also be suitable for disposal on the papers. Other appeals may also be suitable for disposal in this manner.
16. Where the parties to an appeal agree that the appeal can be determined on the papers, that agreement should be communicated in writing to the Court of Appeal Office. If the appeal concerned has already been listed for hearing (particularly appeals listed for hearing in Trinity term), it is particularly important that the Office be notified as soon as possible.
17. The Court will proceed to determine an appeal on the papers only where it considers that it is an appropriate matter to be determined in that way having regard to the nature and significance of the issues arising in the appeal.
18. In the first instance, the Court will dispose of an appeal on the papers only where all the parties to the appeal consent. However, the Court does not exclude the possibility of directing in the future that particular appeals or categories of appeal, would be determined on the papers.
19. Where the Court directs that an appeal be determined on the papers, it may as it considers it appropriate give directions regarding the delivery of written submissions. The appellant shall, in all such appeals, be entitled to deliver a further submission in response to the submissions of the respondent.
20. The Court may at any time decide that an appeal which it has accepted as being appropriate for determination on the papers ought in fact be determined only after a hearing and, in that event, may give such directions as it considers appropriate for the hearing of such appeal.
Article 34.1 of the Constitution
21. Save as is otherwise provided for by law, appeals before the Court, including those conducted remotely, shall continue to be heard in public in accordance with Article 34.1 of the Constitution. Given that remote hearings will take place virtually, specific measures have been put in place to satisfy the requirements of Article 34.1 in the particular and challenging circumstances of the Covid-19 Pandemic.
22. All remote hearings will be recorded by or on behalf the Court using the Court’s normal digital audio recording (DAR) system. In addition, access to the remote hearing can be granted to a stenographer for the purpose of preparing a transcript of the hearing.
23. Recording a remote hearing, and/or disseminating the recording of such a hearing, without the express authority of the Court is strictly prohibited and may amount to a contempt of court.
24. The Court has put in place arrangements to enable bona fide members of the media, as representatives of the public, to access remote hearings held by the Court so as to enable those hearings to be reported on in the media in the ordinary way.
25.If and to the extent that it is practicable to do so, arrangements will also be made to facilitate access to remote hearings by members of the public.
26. It may also be feasible to broadcast remote hearings in a courtroom to which bona fide members of the media and (subject to applicable travel restrictions) members of the public can have access.
27. In the event that an appeal is decided on the papers, the Court shall ensure that its decision on the appeal is published online without delay and shall, where practicable, at the same time as publishing its decision, publish online the parties’ written submissions to the Court (or, as it may appear appropriate to the Court, a redacted or summarised version of those submissions) as well as such other material relevant to the appeal as the Court considers it necessary to enable members of the public properly to understand the nature of the appeal and the Court’s decision on it.
28. For the avoidance of doubt, none of paragraphs  –  above apply to in camera hearings or hearings held otherwise then in public in accordance with law.
Papers for Appeals
29. Considerations of public health, as well as associated restrictions on travel and on the operation of the Court of Appeal Office, mean that the normal system of filing hard-copy books of appeal papers cannot operate satisfactorily or safely and the adoption of electronic filing for appeal papers is essential if the Court is to be able to operate effectively during the Covid 19 Pandemic.
30. A separate Information Notice, Covid 19: E-Filing Information Notice (“the E-Filing Notice”) has already been issued by the Court which sets out detailed guidance in relation to electronic filing and the preparation of electronic books for Court hearings which may be accessed on http:/beta.courts.ie
Fixing of appeals for remote hearing
Appeals already listed for hearing in Easter and Trinity Terms
31. A large number of appeals are already listed for the Easter and Trinity terms.
32. If current circumstances continue, it is unlikely to be practicable for the Court to hear all of these appeals on their listed dates and some will have to be adjourned. In addition, certain of these appeals may not, for various reasons, be appropriate for remote hearing. Longer appeals are less likely to be suitable for remote hearing, at least in the short term as the Court, its staff and practitioners familiarise themselves with the new procedures.
33. The Court will continue to hold regular call-overs of appeals listed for hearing with a view to ascertaining their status, assessing whether such appeals are suitable for remote hearing, giving directions and listing appeals for hearing where appropriate and nothing in this Information Notice affects the listing of cases in that manner.
34. The Court has conducted a number of appeals remotely and is satisfied that it is possible to conduct most appeals by way of remote hearing, while acknowledging that some may not be suitable for remote hearing. The Court therefore proposes to proceed in so far as possible on the basis that appeals will be heard remotely on the date listed or such other date which the Court may assign to the appeal in the event that the court is not in a position to hear the appeal on the date currently assigned.
35. At the call-over of the list, any party who considers that an appeal is not suitable for remote hearing may object to the appeal being listed for hearing remotely. The Court will have due regard to any objection advanced to a remote hearing but may, where it considers it appropriate to do so having regard to the interests of justice, direct that the appeal proceed by way of remote hearing notwithstanding such objection.
36. In relation to appeals other than appeals already listed for the Easter or Trinity terms, an application may be made in cases of urgency for the appeal to be listed for hearing and for a direction that the appeal be heard by remote hearing. Such an application should be made to the Court of Appeal Office as soon as possible following the filing of the Notice of Appeal and should set out the grounds of urgency and should include an appropriate timetable for the taking of the necessary steps to ensure compliance with the requirements of this Information Notice and of the E-Filing Notice in advance of any hearing of the appeal.
Directions/Case Management Hearings
37. The Court may, from time to time, hold a remote directions/case management hearing in relation to any appeal pending before it.
38. Strictly without prejudice to the generality of the foregoing, such a hearing may be fixed in advance of the Court giving a direction that an appeal be heard by remote hearing and for the purpose of considering whether or not to grant such a direction.
39. Where a direction that an appeal be heard by remote hearing has been made, a remote directions/case management hearing may be fixed in advance of the hearing date to allow for directions to be made in relation to the conduct of the hearing and/or any other relevant matters and for the purpose of ensuring that the appeal will be ready to proceed on the date fixed for it. More than one such directions/case management hearing may take place in relation to any given appeal.
40. The counsel (or, where applicable, the solicitor) who will be conducting the appeal should, where possible, participate in any directions/case management hearing relating to that appeal.
41. At the discretion of the President, a specific Judge of the Court of Appeal may be nominated as the judge responsible for dealing with all directions/case management issues arising in relation to a specific appeal.
Preparing for a Remote Hearing
42. Proper and timely preparation and planning is essential if remote appeal hearings are to proceed successfully. Parties and their legal representatives are expected to engage pro-actively and co-operatively to ensure the successful conduct of the hearing.
43. Parties are in particular expected to engage constructively in identifying and resolving any technical/technological issues that need to be addressed in order to ensure the successful conduct of remote hearings.
44. Parties and their representatives must identify the issues that require to be dealt with, make every effort to agree and narrow the issues whenever possible and identify clearly for the Court in advance of hearing those issues which remain to be determined.
45. In any appeal where the appeal papers are of a significant volume, the parties should, in advance of the hearing, identify in writing the particular document or documents likely to be opened by that party in the course of the hearing. Where appropriate, a separate e-folder of such documents should be prepared and provided to the Court.
46. Similarly, the parties should, in advance of the hearing, identify in writing the specific authorities likely to be opened by that party in the course of the hearing.
47. Instructions on accessing and using the PEXIP platform will be sent to parties in advance of the remote hearing. These instructions will provide the relevant access codes to the virtual meeting room (VMR) for the hearing. Parties and their advisers will normally be able to access the VMR in advance of the hearing and should do so in order to familiarise themselves with the operation of the platform.
48. Arrangements should be made to enable real-time private communication between parties and their legal teams (and within the legal team) while the hearing is taking place, such as by setting up a WhatsApp group or other form of instant messaging.
49. The parties, and in particular the appellant and its legal representatives, should liaise closely with the Court of Appeal Office in the period prior to a remote hearing to deal with any technical issues and to identify any further arrangements that may need to be made for the purposes of the hearing.
50. The Court intends in due course to issue a protocol giving further guidance on the practical aspects of remote hearings.
51.Consent orders in respect of pending appeals shall be made on foot of an email setting out the precise terms of the order(s) sought and exhibiting the consent of all of the parties to the appeal to the making of such order(s).
Judgments and Consequential Orders
52. The arrangements for the delivery of judgments and the making of consequential orders set out in the statement issued on 24 March 2020 by the Chief Justice and the Presidents of the Court of Appeal, High Court, Circuit Court and District Court (available on courts.ie) shall continue to apply until further notice.
53. Arrangements for the payment of court fees electronically to the Court of Appeal Office and for the issuing by the Office of electronic receipts in respect of such payments are currently being explored.
Dated this 14th May 2020
President of the Court of Appeal