Remote Hearings In The Time Of Covid-19

• Published date: 22 June 2020
• Author: Mr Siew Suet Mey and Laarnia Rajandran
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Litigation, Contracts and Force Majeure, Operational Impacts and Strategy
• Law Firm: SKRINE

In light of the Covid-19 pandemic and movement control measures having been implemented in many countries around the world, lawyers in Malaysia and elsewhere are seeing changes in the manner in which the administration of justice is dispensed. Without being able to conduct hearings and trials in a physical courtroom, the courts are now taking matters remotely and virtually in order to ensure access to justice remains available to the public, despite the ongoing pandemic.

On 23 April 2020, Malaysians saw for the second time a live broadcast of court proceedings wherein the Court of Appeal live streamed three appeals for the public to view. The first ever live broadcast of court proceedings was in 2009, during the Teoh Beng Hock inquest proceedings. The recent Court of Appeal hearing was, however, novel in that the proceedings were conducted entirely remotely as the parties involved were not located in the same courtroom, unlike the inquest proceedings which was live streamed from one location, where all parties involved were present in the same courtroom.

Could the recent virtual Court of Appeal proceedings then pave the way forward for future court proceedings in Malaysia during the course of the Covid-19 pandemic?

This article will provide a brief overview of the shift towards remote hearings and the measures that have been implemented in Malaysia to accommodate this thus far. The approach in other jurisdictions in relation to remote hearings, in particular England, Australia and Singapore, will also be considered below.

Malaysia

With the Movement Control Order coming into force on 18 March 2020 the courts nationwide were closed and all hearings, appeals and trials which had been fixed before the courts were adjourned However, the judiciary allowed parties in civil cases to apply for court proceedings to be conducted remotely by way of the court's e-Review system, exchange of e-mails or video conferencing, where consent of parties and leave of court had been obtained. These were limited to ex-parte and inter-partes matters which were filed with a certificate of urgency at the High Court and subordinate courts.

Subsequently, with the extension of the Movement Control Order by the Malaysian Government, the courts then expanded the scope of proceedings which can be conducted remotely to include interlocutory appeal hearings, uncontested interlocutory applications which included, amongst others, hearing of interlocutory appeals, applications for amendment of pleadings ad interim injunctions, striking out applications judicial review, leave to enforce judgment, registration of charge under the Companies Act 2016 and warrant for arrest of vessel contested interlocutory applications which are brief and short, and appeals to the Judge in Chambers from the decision of the deputy registrar or senior assistant registrar. Parties can also apply for post-trial decisions and mediation to be heard online.

The judiciary also introduced its own guidelines for the conduct of remote hearings by way of video conferencing, which includes bandwidth requirements, the applicable online platform (Skype for Business or Skype is recommended and Zoom is disallowed by the courts), conduct of parties during the hearing (parties must observe courtroom etiquette during the hearing) and preparation and conduct of the hearing (such as the requirement for all relevant documents to be filed by way of e-filing and a trial run of the remote hearing is to be conducted to iron out any issues). To date the courts have been regularly conducting hearings remotely via video conferencing and exchange of e-mails.

With the Conditional Movement Control order now in effect, the courts will recommence hearing cases in open court in stages from 13 May 2020 onwards. In this regard, the judiciary has issued a 'Guidelines of Court Operations During the Conditional Movement Control Order Period and Post-Movement Control Order' dated 8 May 2020 and two Press Releases dated 11 May 2020, that is, the 'The Judiciary's Standard Operating Procedures (SOP) During The Covid-19 Pandemic' and 'Court Operations Beginning 13 May 2020'. The salient measures that have been implemented by the judiciary are that the hearing of cases will be set at staggered timings and a notice regarding the status of cases will be issues to the relevant parties prior to the hearing date only two lawyers per party are allowed to be present in court for a hearing (including pupils in chambers) and in the event more lawyers are needed, an application must be made to the court complete with justification, prior to the hearing...