The Qatar International Court (‘the Court’) was established with technology and remote access in mind. This has been especially fortunate in light of the international health crisis that has arisen as a result of Covid-19. In particular, it has meant that case management and hearings before the Court have been able to proceed much in the same way as they have hitherto. That is not to say, however, that there has been no change in the way the Court has operated as a result of the Covid-19 situation. First, on a day-to-day basis, the majority of Court staff are working from home. Secondly, physical trials (i.e. with all participants appearing physically in the courtroom) are no longer taking place; instead, all trials (and other hearings) are taking place remotely. Whilst, over the years, there have been many hearings where some participants have appeared remotely, there had never been, until recently, a hearing where all participants had appeared remotely from different locations. What follows is essentially a review of the Court’s recent experience of a fully remote hearing and an identification of the various issues that were considered both prior to and following the hearing. It is hoped that the below will highlight not only that it is perfectly possible for a court to remain fully operational during a health crisis such as the present, but also that the experiences will assist other courts around the world in their delivery of justice.
The Legislative / Procedural Framework
It is of paramount importance that the procedure employed before any particular court allows for flexible ways of working. A number of courts around the world have not been able to act in ways that they would like to because their underlying regulations or rules either do not provide for flexibility in procedure or, worse, prohibit particular practices (such as the use of video hearings in certain specified circumstances). The Court’s procedure is governed by its Regulations and Procedural Rules which were enacted in 2010. Of note, for present purposes, are the following provisions:
The overriding objective of the Court is to deal with all cases justly (Article 4.1)
Dealing with all cases justly includes, so far as practicable...making appropriate use of information technology (Article 4.3.4)
The Court has the power to take all steps that are necessary or expedient for the proper determination of a case (Article 10.1)
The Court shall manage cases in accordance with the overriding objective (Article 15.1)
If the Court so directs there will be a directions hearing which may take place by telephone or by video link if the Court considers it appropriate (Article 22.2)
The Court may give direction as to…the manner in which any witness evidence is to be given (Article 27.1.6)
The Court shall conduct all hearings in such manner as it considers most suitable, given the issues raised by the dispute and in order to facilitate the just, expeditious and economical determination of the dispute (Article 28.4)
If the Court considers it appropriate, it may direct that any hearing takes place by video link or telephone. (Article 28.7)
It will be noted that the above are drawn in such a way so as to give the Court considerable flexibility in the way it manages cases and conducts hearings. This has always been of considerable importance to the Court but is particularly critical at the present time. The Court must, of course, always act in accordance with the overriding objective. The appropriate use of technology will help to ensure that it does so.
Case Management- eCourt
Whilst a lot of courts are understandably focusing on how to facilitate hearings during the Covid-19 pandemic, continuing active case management is of equal importance, if not greater given that, during the lifecycle of any case, more time will be spent on case management than on the actual hearing itself.
Since 2018, case management at the Court has taken place with the assistance of eCourt, a specialist electronic case management system designed in conjunction with Singaporean tech company Crimson Logic.
eCourt has been tailored to the requirements of the Regulations and Procedural Rules of the Court and has numerous benefits, including:
eCourt is available in both English and Arabic.
It is free to use.
eCourt is accessible via a variety of devices including tablets and mobile phones.
It is available 24 hours a day from anywhere in the world (providing the user has access to the internet).
eCourt is safe and secure to use.
It allows parties to file and access case papers and communications with the Court.
eCourt has an easy to use interface, customised for litigants in person and legal practitioners to ensure streamlined navigation.
It provides email and SMS notifications to alert users of tasks and communications thereby ensuring that users are kept up to date with how their case is progressing and what actions, if any, are required from them.
eCourt is integrated with the Court’s video and telephone conferencing facilities, allowing parties to appear at hearings remotely.
It has an in-built help function to assist users who may have queries in relation to eCourt’s functionality.
There are a variety of user roles. Internally, the Court’s judges all have individual accounts, as do Court staff. Externally, accounts can be created for legal practitioners as well as litigants in person. Creating an account is simple and can be done via the Court’s website. Importantly, the appearance and functionality of a user’s eCourt account varies depending upon the user’s role. This ensures that only those tasks which need to be performed by a particular user are available to him or her.
At the time of writing, the physical Registry at the Court remains open. However, the Court is advising all parties and lawyers to use the eCourt system, not only for the reasons given above, but to ensure that health risks are minimised.
As parties, lawyers, judges and Court staff can all access eCourt remotely, active case management can continue without anyone needing to be physically present at the Court. This has been the case for the last two years but the benefits in light of the current health situation are obvious.
On 7 and 8 April 2020, the Court held its first fully remote hearing. The hearing concerned an application for summary judgment in the context of a dispute over demands said to have been made under a Performance Bond (in sum of QAR 19,800,000) and an Advance Payment Guarantee (in the sum of QAR 9,900,000).
The case had been listed for a two-day hearing with all parties, lawyers, judges and court staff due to physically convene in the courtroom in Qatar. However, as a result of the Covid-19 situation, a different approach was called for. The options available were essentially either (i) to continue with the scheduled hearing, but with all parties appearing remotely, (ii) determine the matter on the basis of written submissions alone, or (iii) adjourn to some unspecified point in the future. The latter was not considered an appropriate option given that there remains no certainly as to when matters will return to normal. The case did not lend itself to a determination on the papers, without the assistance of oral submissions. Accordingly, the Court directed that the hearing would go ahead but with all participants appearing remotely.
The three judges who were hearing the case appeared remotely from their respective homes in Scotland, England and South Africa. The lawyers appeared remotely from England and Qatar. The Registrar of the Court appeared remotely from within the courtroom itself. Thus, all six participants in the proceedings appeared from different locations and the entire two-day hearing was conducted using the Court’s video-link technology (which, as mentioned above, is integrated with eCourt).
In terms of procedure, the hearing proceeded in much the same way as if everyone had been present. However, to ensure the smooth running of proceedings, the Registrar circulated ‘ground rules’ to all participants in advance of the hearing. The ground rules covered the following matters:
Commencement of the Hearing
Participants were advised that the hearing would commence with the Registrar announcing the case and identifying all those who were appearing via the video-link. The next person to speak would be the presiding judge who would explain how the hearing was to proceed.
Anyone who has appeared over a video-link will be acutely aware of the risk of talking over one another. To avoid this (and the associated disruption), participants were advised that they should generally only speak when invited to do so by the presiding judge. Interjections were to be kept to a minimum and only when absolutely necessary. When a participant wished to interject, they were advised to raise their hand to signify to others that they wished to do so. When a participant had finished speaking, they were to state that they have concluded. The presiding judge then indicated who was to speak next.
Participants were advised that judges, court staff and advocates were not required to wear robes when participating in the remote hearing. Business attire / national dress was sufficient.
Equipment tests, which were managed by the Court’s IT staff, were vital to the smooth running of the hearings. Video-link participants were advised to ensure that they made themselves available, as required by the Court IT staff, to conduct any necessary tests to ensure that the participants could access the remote hearing. In the present case, this involved a preparatory test a week before the hearing and a follow up test an hour or so prior to the commencement of the hearing.
The video-link system used by the Court had an inbuilt record function, operated and managed by Court staff. Participants were advised that they should not separately record proceedings without the permission of the Court.
Audio / Video quality
The quality of each participant’s audio / video was assessed as part of the pre-hearing test(s). Participants were advised of the following general points to consider:
A 4G connection may be preferable to a Wi-Fi one depending upon the signal strength and bandwidth. This should be checked as part of the pre-hearing test.
Using headphones (with built-in microphone) is usually desirable.
If a participant is not speaking, it is helpful if they mute their microphone.
Other applications which may interfere with the remote hearing (such as multiple open browsers on the participant’s laptop etc.) should be closed or otherwise kept to a minimum.
The room which the participant is in should be free from external distractions. Smaller rooms are preferable to larger ones. Doors should remain closed. Participants should also be mindful of what can be seen by others who are observing the proceedings. Backgrounds should, where possible, be inoffensive and not a distraction. The participant should be mindful of their privacy and not broadcast areas of their home or office that they do not want other people to see.
Mobile phones and other electronic devices should be switched off or turned to silent.
Breaks / Adjournments
The presiding judge determined when breaks were to occur. If any of the participants had specific needs for breaks, these were to be canvassed with the Registrar in advance of the hearing or, if this had not been done, with the presiding judge at the commencement of the hearing. During breaks, the video-link was closed, and participants re-joined the hearing at the designated time.
If any participant suffered technical difficulties during the course of the hearing (for example, loss of audio or video) they were advised to alert the other participants by raising their hand and explaining the nature of the difficulty. If this was not possible (because, for example, the video was no longer working), the participant was advised to immediately contact the Registrar by email. The presiding judge would then stop the proceedings until the matter had been resolved.
As the entire hearing was conducted remotely, it was important to ensure that members of the public could still observe proceedings, it being a public hearing. Accordingly, proceedings were livestreamed with details of how to access the livestream being made available on the Court’s website. The Court’s IT staff managed the livestream and ensured that it was activated and deactivated at appropriate times.
As the three judges were appearing from three different locations (indeed, three different countries), a separate, private, video-link was established for the purpose of judicial deliberations.
For the most part, the hearing ran smoothly and was completed within the original time estimate. There were, on occasions, technical difficulties whereby some participants lost, temporarily, video functionality owing to personal connectivity issues. However, such matters were resolved quickly, with the assistance of the Court’s IT staff, to ensure that proceedings were able to resume promptly, with minimal disruption.
The above is by no means an exhaustive list of considerations. It is, however, a reflection on the Court’s recent experiences during these challenging times. Maintaining access to justice is of critical importance, but the quality of the justice system should not be diminished in an effort to keep courts open and operational. The measures put in place by the Court so far have ensured that people have been able to access the Court safely and securely. There has been no dilution of quality of service provided. The Court will continue to keep the situation under review and will update and amend its practices and procedures, if considered appropriate, as the Covid-19 situation develops. It is hoped that by sharing experiences on a platform such as this one, other courts may be able to gain insights that will help them with the administration of justice.