Guidance re: Civil Proceedings during the Coronavirus Pandemic

The new Practice Direction 51Y

The Master of the Rolls and the Lord Chancellor have signed Practice Direction 51Y (PD) in relation to video or audio hearings during the Coronavirus pandemic. It is a technical amendment, which clarifies the manner in which the court may exercise its discretion to conduct hearings remotely in private. It also clarifies what steps the court may make to ensure access by the public to remote hearings that have been held in private through making available audio or video recordings of those hearings at a time when the courts are operating normally.

The PD is introduced as a pilot scheme under CPR Pt 51. It is intended to formalise the PD through a rule amendment at the earliest opportunity. It will remain in force for no longer than the Coronavirus Bill is intended to remain in force.

The main changes effected by this PD:

  • clarify that the court may exercise the power to hold a remote hearing in private where it is not possible for the hearing to be simultaneously broadcast in a court building. It may do so consistently with the power to derogate from the principle of open justice and may do so under the provisions of this PD in addition to the bases for doing so set out in CPR 39.2. Where such an order is made under the PD the provisions in CPR 39.2(5) do not apply;
  • confirm that the court may not conduct a remote hearing in private where arrangements can be made for a member of the media to access the remote hearing. It makes clear that in such circumstances the court will be conducting the hearing in public;
  • clarifies that the court may direct that where it conducts a remote hearing in private, must, where it is practicable to do so, order that the hearing is recorded. Where it has power to do so, it may order the hearing to be video recorded, otherwise where a recording is to be made it should be an audio recording. Available powers to order such hearings to be recorded, and subsequently broadcast, apply to the Court of Appeal (Civil Division) through The Court of Appeal (Recording and Broadcasting) Order 2013 and are expected to apply more generally through s.85A of the Courts Act 2003, which is intended to be inserted by the Coronavirus Bill;

where a remote hearing is either audio or video recorded, any person may apply to the court for permission to access the recording.