Could the establishment of 'Nightingale Courts' help the legal system deal with the backlog of cases caused by COVID-19?
Today marks the return of in-person trials at most county courts across the country. But as is to be expected, court capacity to deal with civil cases is a far cry from what it was before COVID-19. Some cities boast modern civil justice centres, such as Liverpool and Manchester, but in many cities’ courts, their corridors and conference rooms are small without much scope for social distancing between parties, solicitors, barristers, witnesses and court staff at all.
This Spring, the world as we knew it changed and almost all court hearings were adjourned or rearranged for hearing by telephone in response to the Government’s lockdown measures. In the housing world, we have seen an unprecedented amount of anti-social behaviour injunction cases heard by telephone while only committal first hearings, following arrests of defendants in breach of injunctions, have been held in person. Meanwhile, disrepair claim hearings have been postponed or held by telephone, forfeiture and leasehold related hearings delayed and possession claims completely stayed (and continuingly so, see Practice Direction 51Z and Civil Procedure Rule 55.29).
While these postponements have resulted in eerily quiet courts for a few months, that is no reflection of the work being done behind the scenes. Court staff have been working relentlessly, often including at weekends, to keep turning the cogs of our legal system and ensure access to justice remains a possibility. The piles (whether electronic or physical) of cases now ready for hearings must be looming and social distancing means it will take a long time for cases to be appropriately triaged or pioritised, listed and dealt with. Some county courts alone have a backlog of approximately 2,000 trials each, and that is without including new claims and specifically possession trials which should make a return after 23 August 2020, subject to the stay being extended no further.
Many of these cases may not be suitable for remote hearings with evidence given and cross-examination carried out by video. Often in housing-related cases, both claimants and defendants can be litigants in person who, along with witnesses, can be without the skills or means to link up to video-conferencing platforms. However, with social distancing measures in place courts can only deal with a handful of in-person hearings per day. There has therefore been some discussion about opening up ‘Nightingale Courts’ and Justice Secretary Robert Buckland has confirmed that his officials are looking at how it might be possible to adapt the NHS’ Nightingale hospitals model to help with getting through the courts’ backlog as quickly as possible and in person. He said "I would like to see more of that thinking done at pace because, frankly, the more space we have, the more we can do".
The question now is whether the Government will buy into Nightingale hospital style proposals to ease the pressure on courts by facilitating the use of empty or underused public or other buildings. There are more questions still left unanswered though. For example, would there be enough judges available to hear these cases, would the courts be located appropriately close to the parties involved, what would temporary court rooms look like, will this move ensure access to justice or will there still be gaps in the system for certain cases?
To quote the Law Society in its briefing at the 2017 General Election, “Access to justice is a fundamental principle of the rule of law. It enables people to exercise their rights and encourages effective participation in the legal system”. It will be very interesting to see what measures the Government proposes next, check here for more updates in due course.
