Remote court hearings

Sherry Ann McGregor
Sherry Ann McGregor

September 21, 2020

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The Practice Directions that were recently issued by the Supreme Court and Court of Appeal suggest that the highest courts in Jamaica will not be handling civil matters in the same way that they did prior to the onset of the coronavirus (COVID-19) pandemic. (Visit supremecourt.gov.jm and courtofappeal.gov.jm to see the full text of the practice directions.)

While the Supreme Court will have a combination of in-person and remote hearings, there will be no in-person hearings in the Court of Appeal for the first court term, which runs until December 20, 2020. Remote hearings may be conducted via telephone, videoconference or other electronic means.

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Before the COVID-19 pandemic, witnesses rarely gave evidence via videoconference in the Supreme Court. By stating that, “Where possible, the court will make every effort to facilitate evidence/submissions being given from a remote location,” the Supreme Court’s Practice Direction No. 11 of 2020 (‘PD 11’) suggests that this option will now be more readily entertained and facilitated. However, special arrangements must be made to ensure that the witness swears on oath or affirms before giving evidence, and that representatives of all parties are also present in the remote location unless the right to do so is waived. The witness must also be able to view exhibits.

What is clear from PD 11 is that the Supreme Court’s aim is to expedite the hearing of matters, where possible, and to encourage settlements. The following aspects of PD 11 stand out:

  1. There will be no need to file an application and affidavit for a matter to be listed for the purposes of announcing a settlement. An email to the official address of the relevant court registry will suffice.
  2. Documents that are filed at court by attorneys or parties in person now need to include email and civic addresses, landline and cellular telephone numbers to facilitate easy communication with all parties.
  3. Cases involving persons who are 70 years old and older or minors must be given priority.
  4. A trial matter may now be included on a ‘Short List’ with the consent of the parties. A matter that appears on this list must be capable of being completed within three days and the parties must be available to participate in the trial at two days notice.
  5. Requests can be made for applications for hearing in a judge’s chambers in which no oral evidence or cross-examination is necessary to be considered on paper, only.

The Practice Directions include best practices and etiquette for the conduct of remote hearings. Most importantly, remote hearings are not to be recorded and appropriate attire (including the wearing of robes for open court hearings) must be worn.

It is hard to imagine that the use of technology in the courts will not continue to be encouraged, so I considered that the next steps could include:

  • The establishment of an online filing portal to facilitate the filing of all court documents, including pleadings and submissions, even if there is a need to later deliver a hard copy of the filed document.
  • The acceptance of affidavits that are commissioned by video or even an unsworn affidavit, provided that the deponent then participates in the court hearing and swears or affirms the affidavit.
  • Electronic access to court files, even if an appropriate fee has to be paid.

Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com.

Sherry Ann McGregor

Author

Sherry Ann McGregor

Sherry Ann McGregor is a partner, mediator, and arbitrator in the firm of Nunes Scholefield DeLeon & Co.

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