In this two-part article, Jennifer Lee of Pump Court Chambers, and Ezane Chong of Ariff Rozhan & Co., reflect on the guidance issued in the UK and Malaysia concerning Covid-19, and the impact of the pandemic on courts and litigants in their respective jurisdictions. 

PART I

THE IMPACT OF COVID-19 ON THE COURTS AND LITIGANTS IN THE UK

Jennifer Lee, Barrister at Pump Court Chambers, London

In my article, “Covid-19 and “New” Modes of Working”, I touched upon the national guidance issued for the Family Court on 19 March 2020 by Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, intended to “keep business going safely”. Guidance was also issued on the same date by the Lord Chief Justice, which  stated that:

“The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely.  

….It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months. For that reason we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable…”

The guidance issued by the Lord Chief Justice and the President rightly highlight the Courts as a vital public service. It is clear, however, that the pandemic presents an unprecedented challenge to all those involved in the administration of justice, and will have far-reaching consequences for the justice system and the public. It will not be business as usual.

Further Advice/Guidance

A raft of further guidance has emanated from the judiciary at national and local levels. The latest national guidance can be found on the Courts & Tribunals website: https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/.

Of particular note will be the detailed document issued by Mr Justice MacDonald, “The Remote Access Family Court”, dated 25 March 2020 (v.2), which identifies the problems which have arisen from the urgent need to move to remote hearings, and poses solutions. There are helpful appendices to the document, including  a list of communication/IT platforms which are available in chambers in London and in the regions (appendix 3), and a template order which provide for hearings to be conducted remotely, and consequential directions (appendix 4).

The other document of note is the “Contingency Planning – Courts and Tribunals” announcement by the Lord Chief Justice on 27 March 2020, which outlines the temporary consolidation of the work of courts and tribunals into fewer buildings, with 157 priority buildings open for essential face-to-face hearings (representing 42% of the 370 crown, magistrates, county and family courts and tribunals across England and Wales). Courts have been divided into three categories:

• Open courts – these buildings are open to the public for essential face-to-face hearings;
• Staffed courts – staff and judges will work from these buildings, but they will not be open to the public; and
• Suspended courts – these courts will be temporarily closed.

These measures came into effect on 30 March 2020. The latest courts list can be found here.

Impact on Litigants/Clients

There will undoubtedly be real challenges in implementing a remote access Family Court for the duration of the pandemic, particularly in the early stages. On a positive note, many examples have emerged of remote hearings having been conducted successfully, even in difficult circumstances. For instance, many will have heard of the three-day contested COP hearing heard via Skype for Business before Mr Justice Mostyn, which concerned the issue of whether end of life arrangements should be made for an elderly stroke patient. The hearing took place in the presence of the press, and involved five parties and eleven witnesses.

Notwithstanding the success of these remote hearings (and there are many), many other hearings will, or have had to be adjourned, as the courts’ resources become stretched and cases deemed non-urgent are removed from the list.

On a more basic level, not every litigant will have the ability to participate in remote hearings quite as effectively as one might hope, or at all. Litigants in person may well have difficulty with remote hearings, particularly where they have learning disabilities, mental health issues, or alcohol or drug misuse issues. A party may be homeless, or simply lack the necessary facilities to join in remotely.

The experience of remote hearings from the lay client’s perspective may also differ quite markedly from those of the professionals’. An illuminating piece has been written about this perceived gulf on The Transparency Project website (Remote Hearings: A Gulf Between Lawyers and Lay Parties?”). Reference was made to the COP hearing mentioned above and to the (negative) experience of “Sarah”, the daughter of the stroke patient in that case, which is covered in detail on another post on the website (“Remote Justice: A Family Perspective). Written by a lay participant who attended to support Sarah, the post states that:

‘Because of bandwidth problems, all parties and legal representatives were to turn off their video cameras unless they were giving evidence or examining a witness. This meant “it was easy for lawyers to forget that Sarah remained in the virtual courtroom throughout the hearing.

Sarah says: “Skype took away from me the ability to look these people in the eyes – these people who have their opinions about my Dad and only knew him through third-hand notes.  I wanted to look them in the eyes and make them hear the truth but I was looking at a computer screen.”’

In addition to the urgent move towards remote hearings, the social distancing measures imposed have also impacted on the general public in a great number of other ways. Weddings have had to be postponed, and those in relationships have had to “take the plunge” by commencing cohabitation in order to by-pass social distancing measures. There are signs of surge in domestic abuse cases, with many now trapped at home with their abusive partners/relatives and no recourse to protection.

Children from separated families and their parents have also had to grapple with the implications of the measures on their arrangements. Many parents were unclear about their ability to meet the requirements of child arrangement orders. The Government’s Stay at Home rules of 23 March has sought to clarify the situation, stating that “where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” The President has also issued guidance on the issue (updated). The key message is that where the restrictions require the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.

The Impact of Covid-19 in other Legal Jurisdictions

Many other countries across the globe are also grappling with the impact of the pandemic on their justice systems and on society generally. The experience has necessarily varied from country to country, but it is clear that we are not alone in these unprecedented times, as can be seen in the article (below) by Ms Chong of Ariff Rozhan & Co, which sets out the experience in Malaysia. I am extremely grateful to Ms Chong for her illuminating article.

PART II

THE IMPACT OF COVID-19 ON THE COURTS AND LITIGANTS IN MALAYSIA

Ezane Chong, Partner at Ariff Rozhan & Co., Malaysia

On 16 March 2020, the Prime Minister of Malaysia, YAB Tan Sri Dato’ Haji Muhyiddin Yasin, made a televised announcement that a Movement Control Order (“MCO”) would be implemented in an attempt to curb the spread of the Covid-19 pandemic. The MCO was issued under the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967 and took effect from 18 March 2020. As at the date of writing, the MCO has been extended to 14 April 2020.

Thus from 18 March 2020, Malaysia closed its borders and imposed a prohibition on all gatherings across the country. All schools, and government and private premises, have been ordered to shut, except those involved in essential services. Citizens and residents have been directed to stay at home unless they need to buy groceries, seek medical treatment or to perform any official duty or any duty in relation to any essential services. The Royal Malaysian Police and the Malaysian Armed Forces have been deployed to ensure compliance with the MCO.

Impact of the MCO on Courts in Malaysia

As a result of the MCO, all Court premises in Malaysia are closed, and all civil and criminal trials and hearings fixed during the MCO period have been adjourned. The Chief Registrar of the Federal Court of Malaysia has issued guidelines on how Court matters are to be handled.  According to these guidelines, all new civil cases, notices of appeals and documents may still be filed online using the e-Filing system. Case managements scheduled to be conducted online would proceed as normal via the e-Review system (more below), whereas case managements which require the physical attendance of lawyers in Court would be adjourned. For cases where an application is filed with a certificate of urgency, instructions would be sought by the Registrar of the applicable Court from the relevant Judge.

The Chief Justice of Malaysia, The Right Honourable Tan Sri Tengku Maimun binti Tuan Mat, has now issued further guidelines on the conduct of Court hearings for civil matters. Her Ladyship states that to maintain access to justice, any party may apply by email to Court, no less than three days prior to the hearing, for civil hearings to be conducted online via the system of e-Review, exchange of emails or video conferencing subject to: (i) the agreement of the parties; and (ii) the Court’s discretion.

The Chief Justice has also confirmed that cases fixed for hearing during the MCO period before the Federal Court (Malaysia’s apex Court) would be adjourned, but that all leave applications to the Federal Court fixed between 15 April 2020 to 30 April 2020 would be conducted by way of written submissions unless directed otherwise.

The Future Landscape and the Impact on Clients

Clearly, the Malaysian Judiciary has taken measures to adapt. It is likely that further guidelines will be issued by the Judiciary from time to time as events change on a daily basis. As to the effectiveness of remote hearings, and indeed, how receptive litigants, lawyers and judges will be to embracing technology, remains to be seen. Whilst most Courts in the country have already set up e-Review, which is a rather efficient online system enabling mentions, case managements and procedural hearings to be conducted remotely where possible, trials and substantive hearings are still invariably conducted in the traditional fashion, i.e. in a courtroom.

What can be expected is that when the MCO is lifted, there will be a huge backlog of cases before the Courts. Family law practitioners in particular anticipate that there will be a rise in family related issues. When couples and families are forced to spend long periods of time together in confined and restricted spaces, strains will inevitably emerge and conflicts, particularly in fractured relationships, could escalate very quickly.

From my own experience as a family lawyer, Covid-19 has had the following impact on clients:

• All divorce hearings during the MCO period, including a long-awaited trial that was scheduled to start in the second half of March 2020, involving a witness who was to travel from abroad, have had to be adjourned.
• Separated or divorced parents who live in one country and who had planned to exercise their rights of access to their children in another country have been compelled to cancel their trips due to travel bans, and health and safety concerns. We have also received enquiries from separated parents seeking advice on how to navigate the thorny issue with respect to the movement of their children between two households pursuant to agreed child access arrangements or access orders now disrupted by the MCO.
• Whilst disputing couples may resort to alternative modes of dispute resolution (“ADR”), for example mediation and negotiations between themselves or through solicitors, ADRs must still be conducted remotely during the MCO and any settlement reached between the parties will still require the Court’s approval in order for them to be legally binding.

The effects of Covid-19 have also extended to couples who wish to formalise their relationship. The National Registration Department of Malaysia has announced that all registration of marriages would be put on hold during the MCO period. As a consequence, prenuptial agreements drawn up for couples who wish to enter into them prior to marriage have been placed on the back burner for the time being, due to the moratorium on the solemnisation of marriages and the ban of all wedding celebrations, and  the difficulties encountered in procuring and executing official documents during this time.

With no certainty as to where this outbreak is heading or how long it will persist, couples have been advised not to fix any new wedding dates until this terrible pandemic is behind us.

The authors

Jennifer Lee is a barrister at Pump Court Chambers, London. She is a specialist family law practitioner, and has appeared in a number of high-profile reported cases, most notably in Veluppillai v Veluppillai & Ors [2015] EWHC 3095 (Fam) (High Court). She is ranked in The Legal 500 (Leading Junior – Tier 1), and in Chambers & Partners (UK Bar).

Ezane Chong is an Advocate & Solicitor of the High Court of Malaya and a Barrister-at-Law (Inner Temple). She is a partner at Ariff Rozhan & Co, and focuses primarily on family law and private client work. She is a Fellow of the International Academy of Family Lawyers, and is a contributor to the International Comparative Legal Guide to: Family Law 2020 (Malaysian Chapter). She has received numerous legal awards and acted in a number of reported cases in Malaysia and England, including the titanic ligation of Chai vs. Peng and Others [2017] EWHC 792 (Fam).