COVID-19: Litigation in the Time of a Pandemic LATEST UPDATES

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COVID-19: Litigation in the Time of a Pandemic LATEST UPDATES

Published 20 July 2020

All the latest information is in bold.

The extension of the Government’s ‘lock-down’ requiring people to stay at home will have a significant impact on the administration of civil justice.

The effect of the Covid-19 pandemic is clearly seen in the announcement, on 27 March 2020, that over half of the Courts and Tribunals in England and Wales are to be suspended.  The Lord Chief Justice, Master of the Rolls and President of the Family Division have published a message to Circuit and District Judges in relation to the impact of remote hearings on Court business and on 5 June the Civil Justice Council published its report following the review of the impact of COVID-19 on Civil Court users.

On 2 April 2020, Practice Direction PD51ZA came into force, extending the period by which parties can agree extensions to Directions without requiring the Court’s permission from 28 to 56 days.

As we continue to see significant changes to the way in which proceedings are handled across England and Wales, Scotland and Northern Ireland, this alert sets out the position without the need to cross-refer to other documents.

From 31 March the Courts Service has published its listing priorities, particularly for the County Courts. As ever, different courts are taking different approaches – we have set out a table showing the latest intelligence for each local court or group.

The most recent updates are available at the links below:

Update on the position in Courts in Northern Ireland

The location of 10 ‘Nightingale’ Courts has been announced, all of which should be up and running in August

 

ABI Protocol

A number of insurers and Claimants’ solicitors have signed up to a Protocol which includes an agreement to freeze limitation dates (for a minimum of four weeks) in consideration for which the Claimants’ solicitors agree to respond constructively to requests for extensions of time to serve Defences. The Protocol’s application has been extended 30 June 2020, and therefore freezes limitation for fourteen weeks, but will not be extended further.

In Scotland, the ABI and APIL have prepared an agreement, through which no limitation defences will be raised in respect of the period from 30 March 2020 to 7 August 2020 (originally the period was to 20 April 2020, and it may be extended further) and the parties are to look to take a consensual approach to handling claims.

In Northern Ireland, ABI and APIL agreed a Protocol freezing limitation for the duration of the Protocol (and any extensions) and requiring Defendants’ representatives to agree to accept service by e-mail for its duration.  The Protocol, agreed on 24 April 2020 was originally in place until 22 May 2020 and has been extended to 7 August 2020.  Alongside the ABI Protocol, APIL and FOIL agreed a Best Practice Agreement which includes correspondence by e-mail and telephone and payment by BACS where possible.

On 27 April 2020, the ABI and ACSO (Association of Consumer Support Organisations) agreed a Statement of Intent in order for personal injury claims to progress in spite of the lockdown and COVID-19, including remote video rehabilitation (physiotherapy and psychotherapy) and the encouragement of remote video examinations by GPs, psychologists and psychiatrists (and other experts in appropriate cases).   The Statement of Intent includes the recommendation of communication by e-mail and telephone and payments by BACS where possible, together with extensions to the time limits in Stages 1 and 2 of the Low Value Protocol where the lockdown has slowed the Defendant’s liability response.  The Statement of Intent has been extended and will apply to 24 July 2020.

It is important for file handlers to know to which matters the Protocol applies in order to ensure that the limitation period applicable to each claim is known.

Statements of Truth where employees have been furloughed

Where employees of a business are on furlough leave, the Government’s rules prohibit that employee from undertaking any work on behalf of the business (or any linked or associated organisation), including providing services.

As a consequence of the Government’s rules, some such furloughed employees are proving reluctant to assist in investigating claims and/or sign documents, including statements of truth.  This is a practical problem that is likely to persist for the duration of the furlough period (which at present is to 30 June 2020).

The same issue also extends to employees attending court to give evidence on behalf of their employers. 

It is open to debate whether the rules of furlough truly prohibit employees from assisting their employers in dealing with claims, or otherwise assisting the court in determining matters involving those employees’ employers.  In the County Court at Manchester, a trial was recently vacated as one of the witnesses was on furlough leave and was therefore considered prohibited from giving evidence in support of his employer.  However, in contrast, on 4 June 2020 HHJ Godsmark indicated that attending Court to give evidence on behalf of an employer was not prohibited by the furlough scheme, and therefore that the furlough of a witness would not be a reason to vacate the trial (Fottles v Bourne Leisure, Nottingham County Court).

Skype Hearings

DAC Beachcroft were involved in, and made the technical arrangements for, a three day Court of Protection hearing before Mr Justice Mostyn which was heard in its entirety by Skype, over twenty participants being involved in or attending the hearing (including the press) at all times.  We are now seeing other Courts order that trials go ahead remotely.

On 1 July 2020, the Court Service announced that the use of the Cloud Video Platform, which has been used in the Crown and Magistrates’ Courts, is to be extended in the Civil Courts.  The Court Service is assessing whether there is a need to extend the operating hours of the Courts and seeking to identify ‘Nightingale’ Court sites.

Medical Experts and Records

A Claimant’s solicitor has resisted the provision of updated GP records, relying on a letter dated 17 March 2020 from the Chief Executive and Chief Operating Officer of the NHS which asked NHS Trusts to remove routine burdens to devote the maximum operational effort to responding to COVID-19.  The solicitor has sought to argue that it is not appropriate to seek medical records at a time when the GP’s practice should be focussed on providing care.  Delays in obtaining medical records will have an impact in many claims.

On 24 March 2020, it was announced that MedCo has lifted its ban on remote video medical examinations (whilst maintaining the ban on telephone examinations) in order to allow claims for whiplash to continue to be progressed.  The ban will be reinstated in due course.

We have been advised by a number of medical experts that, at present, they are not willing to examine Claimants or would like to postpone examinations, and given the Prime Minister’s instructions of 23 March 2020 we should expect Claimants to agree to the variation of Directions to allow medical examinations to be rearranged.

Police Reports

The West Midlands Police has advised that all enquiries for police reports and related documents are suspended, including outstanding requests, during the COVID-19 Pandemic.

Remote Joint Settlement Meetings

In order to avoid unnecessary travel and ensure social distancing, remote JSMs and ADR are being proposed in many claims and have taken place with successful outcomes in a number of cases.

The Supreme Court

  • The Supreme Court has been operating remotely since its Registry closed on 20 March 2020.
  • On 24 March the Supreme Court heard an appeal remotely and its judgments will be handed down remotely.

England and Wales

With effect from 30 March 2020 the Court Service has consolidated the work of all Courts and Tribunals into 157 priority court and tribunal buildings, i.e.42% of the Court Estate, in order to maintain the safety of all in the Courts. The Law Society has produced a ‘heatmap’ showing which Courts are open, which Courts are staffed and which Courts are suspended.

In order to alleviate pressure on the Courts, the locations of ten Nightingale Courts (which are to be up and running by August 2020) has been published, as follows:

  • the former County Court at Telford, Shropshire (Civil and Family)
  • Hertfordshire Development Centre, Stevenage (Civil)
  • Swansea Council Chambers, Swansea (non-custodial Crime)
  • Cloth Hall Court, Leeds (Civil trials and Business and Property Court)
  • Middlesbrough Town Hall, Teeside (Civil)
  • East Pallant House, Chichester (Civil and Family)
  • 102 Petty France, London (Family)
  • Prospero House, London (non-custodial Crime)
  • the former Magistrates’ Court at Fleetwood, Lancashire (Civil and Family)
  • Knight’s Chamber and Visitor Centre, Bishop’s Palace, Peterborough Cathedral (non-custodial corporate Crime)

Remote hearings will continue to take place in civil and family matters where possible and decisions on how to conduct individual hearings remain at the discretion of the judiciary. 

On 10 June 2020 the Court of Appeal ruled, in C (Children: Covid-19: Representation)  that it is not unfair for an in-person hearing to proceed where Leading Counsel for one of the parties will not be able to attend in person, as Leading Counsel is shielding in relation to Coronavirus.  Remote attendance will not prevent the party from participating effectively in the hearing and any disparity created by the absence of Leading Counsel from the courtroom will be slight and will not amount to an inequality of arms.  The case related to children in foster care and adjourning the case until after Leading Counsel had finished shielding would not be appropriate as the adjournment could be significant.

The Courts which remain ‘open’ may continue to hold face to face hearings where they are urgent and cannot take place remotely.  A number of other Courts (described as ‘staffed’) will not be open to the public, but Judges and staff will continue to work from them in order to support remote hearings and progress cases, ensuring continued access to justice.

The Court Service publishes a daily operational update which includes a priority list, setting out the type of hearings which the County Courts must continue to hold.

The Court Service has published guidance, updated on 22 May 2020, on how social distancing and safe access to the Courts is to be provided.

Amendments to the Civil Procedure Rules 1998

Practice Direction PD51ZA

  • In force from 2 April 2020 as a temporary measure and has effect to 30 October 2020.
  • Increases the period by which parties can agree extensions to Directions without requiring the Court’s permission from 28 to 56 days (Rule 3.8).
  • Applications for longer extensions of time beyond 56 days will be considered on paper and the parties may then apply for an oral hearing.
  • The Courts will take into account the impact of the COVID-19 pandemic when considering applications for extensions of time, adjournments or relief from sanction.
  • The Courts’ taking into account the impact of the pandemic has been illustrated by the judgment in Stanley v London Borough of Tower Hamlets (2020). The Claimant served proceedings at a point in time when the Defendant had closed many of its offices, leaving only a skeleton staff in attendance.  The Defendant did not acknowledge service and the Claimant applied for default judgment;  the Defendant applied to set aside the default judgment.

    Mr Justice Julian Knowles, noted that, but for the pandemic, the Defendant would have acknowledged service, and criticised the Claimant’s conduct in serving proceedings during the pandemic and failing to contact the Defendant to discuss how proceedings could best and most effectively be served.  The default judgment was set aside.  Whilst the judgment was ‘regular’, the Claimant was ordered to pay the costs of the Defendant’s application.

Practice Direction 51Y

  • In force from 25 March 2020 and will cease to have effect when the Coronovirus Act 2020 s.75 ceases to have effect.
  • Enables the Court to direct that hearings, which would normally be held in public, should be held in private in order to enable the hearing to proceed remotely.
Court Fees
  • The Court Service has published guidance indicating that, when applications to adjourn civil or family hearings are required as a consequence of Covid-19, the Court staff have a discretion to waive the Court fee for the application.
Remote Hearings
  • On 18 March 2020 the Lord Chief Justice advised that remote attendance should be the default position for Court hearings. The Court Service has advised that Judges have been encouraged to make as much use as possible of telephone and video hearings, and that Skype for Business had been installed on the laptops of the judiciary and HMCTS staff.
  • The Protocol for Remote Hearings, published on 22 March 2020, confirms that remote hearings will be used whenever possible, including in cases involving Litigants in Person, and that the Judge retains discretion over how a hearing should be conducted. The Courts will propose to parties how hearings are to be conducted remotely and, where hearings are conducted remotely, the parties should prepare electronic bundles for the Court.
  • Rule 5.3 of the Civil Procedure Rules 1998 permits the use of electronic signatures on Court documents in England and Wales.
Court of Appeal
  • On 27 March it was announced that all hearings in Court of Appeal (Civil) would be held remotely.  On 1 April 2020 judgment was handed down (remotely) in a case which had been heard remotely on 26 March 2020.  All of the Court counters are closed, including drop boxes and telephone services, but e-mail contacts are available to parties.
High Court
  • The High Court Contingency Plan, dated 26 March 2020, provides guidelines for urgent business in the RCJ and Rolls Building.  The RCJ fees counter is closed.
Administrative Court
  • An electronic bundle repository is being introduced which allows electronic bundles of any size to uploaded, accessed via a link which will be e-mailed to the parties by the Court. The updated guidance allows electronic bundles to be filed.
  • A dedicated e-mail address has been provided for the lodging of urgent claim forms or applications requiring immediate judicial consideration.
Business and Property Courts
  • The Courts in Leeds, Liverpool and Manchester remain open for face to face hearings; the Court in Newcastle is staffed to support remote hearings.  Where possible hearings will be held remotely, and if remote hearings are not possible they are likely to be adjourned.
Queen’s Bench Division
  • With effect from 15 June 2020, Guidance has been issued for face to face hearings and remote hearings before the Queen’s Bench Masters, including details of the clerk allocated to work with each Master.
  • Mr Justice Johnson has ordered that a clinical negligence trial should proceed in the week of 8 June 2020, the trial being listed for 5 days with five witnesses and four expert medical experts.  The trial directions include a timetable for the experts and witnesses to attend at specified times, one expert to attend remotely and the Claimant’s solicitors to provide a separate bundle for each witness and expert (save for those from the same household); SC v University Hospital Southampton NHS Foundation Trust.
  • On 27 March it was announced that all hearings in the High Court Queen’s Bench Division will be held remotely. All of the Court counters are closed, drop boxes and e-mail contacts being available to parties, and thee Interim Applications Court has issued Guidance in relation to urgent applications.
  • Senior Master Fontaine has issued Guidance Notes which include requirements for the preparation of electronic bundles and confirming that documents with electronic signatures are accepted in the Queen’s Bench.
  • Guidance Notes from Master Cook, Master Davison, Master Eastman, Master Gidden, Master McCloud, Master Sullivan and Master Thornett,  in relation to hearings before them, have been issued.
  • Senior Master Fontaine has issued a Guidance Note advising that the service of proceedings and judicial / extra-judicial documents by the Foreign Process Section has been suspended. The examination of witnesses for proceedings in other jurisdictions has been suspended for 90 days from 25 March 2020.
  • Guidance Notes have been issued in relation to Possession Claims against Trespassers and in relation to Enforcement Proceedings by Enforcement Agents given the need for social distancing.
County Courts

From 31 March 2020, the Court Service has published a daily report including its listing priorities.

  • Work which must be done includes:
    • applications to stay existing enforcement proceedings.
    • applications in matters lists for trial in the next three months.
    • applications in matters in which a substantial hearing is listed in the next month.
    • multi-track hearings where the parties agree that it is urgent.
  • Work which could be done includes:
    • infant approvals by Skype.
    • applications for interim payments.
    • Stage 3 MOJ hearings.
    • applications to set aside default judgments.
    • preliminary assessments of costs.
    • small claims and fast track trials where the parties agree that it is urgent.

The actions taken by County Courts vary from location to location, as set out in a table we have prepared.

From 15 June 2020, the County Courts at Aberystwyth, Bedford, Blackwood, Bradford, Grimsby, Isle of Wight, Lincoln, Newcastle, Newport, Port Talbot, Scarborough, Slough, Sunderland, Walsall, Weston-Super-Mare, Worcester will be open.

The Court Funds Office
  • The Court Funds Office, which handles Payments into Court, has introduced BACS (rather than cheque) payments.  Electronic signatures now may be used on the Court Funds Office Form 100.
Employment Tribunals
  • Guidance published by the Presidents of the Employment Tribunals in England and Wales and Scotland, 18 March 2020.
    • future case management hearings should take place by telephone or other electronic means unless this would be contrary to the overriding objective.
    • the parties and Judges should consider whether preliminary hearings can take place electronically or by telephone.
    • from 23 March 2020 all in-person hearings will be converted to telephone case management conferences in order for the Tribunal to decide how the claims should proceed.
Coroners’ Courts
  • Coroners should consider whether inquests should be adjourned to allow NHS staff and other Front-Line Staff to remain at work; where possible, technology should be used to enable hearings to proceed.
  • Guidance has been issued by the Chief Coroner advising that remote hearings should continue to take place and other hearings should only take place when suitable arrangements to ensure safety are possible.
  • Coroners are reminded to recognise the clinical commitments of medical practitioners and to consider offering extensions of time for the provision of Prevention of Future Deaths Reports to NHS Trusts, other healthcare providers and prisons.
  • Senior Coroners have been instructed to adjourn jury inquests ‘of significant length’ due to commence between 31 March and 28 August and other inquests not involving a jury which are long or complex and due to commence between 31 March and 28 August may need to be adjourned.

Northern Ireland

The Office of the Lord Chief Justice issued a Business Continuity Covid-19 Update for the week commencing 15 June 2020, to include civil matters.

County Court:

  1. Judges will deal with Civil Bills if matters are agreed or approval is required.
  2. Minor settlement, quantum only matters with no witness evidence and interlocutory matters which can be dealt with predominantly by written submissions are being considered.
  3. It is not anticipated at this stage that contested hearings will proceed at this stage. Small claims, contested civil bills and ejectment bills are not yet proceeding.
  4. Case management reviews, minor settlements, interlocutory applications and quantum only cases not requiring witness evidence which can be dealt with predominantly by way of legal argument and oral submissions, will also be dealt with.

High Court:

  1. All Civil Cases will continue to be adjourned, but a Judge and the QBD Masters have now undertaken administrative reviews of QBD cases listed up to the end of the Trinity Term (30 June 2020) with lists having been circulated via the LSNI enformer. Parties should continue to collaboratively fill the relevant COVID Court form and return to court. Such reviews will continue until the end of Trinity term (the end of June). . If an adjournment is sought, this will occur automatically for four weeks.
  2. Where a case is listed for review, the forms should be returned electronically by 30 June; the subject box should state QBD admin – review.
  3. Where a case is listed for hearing, the forms should be returned electronically by 30 June; the subject box should state QBD Actions – Hearing.
  4. The listing of QBD actions for hearing over the summer recess, in an effort, to clear some of the backlog, will commence on 20 July 2020.   The Court will sit every Monday and Tuesday during the period 20 July to 1 September 2020 to deal with QBD actions that are ready to proceed, with the potential to list up to six actions each day. The following should be noted in respect of these hearings
    1. Hearings will not be held remotely. They will be in the RCJ.
    2. Parties must dial into a callover from office on the morning of the hearing
    3. All witnesses are to be held somewhere close to the RCJ (Belfast office would suffice). No waiting areas will be facilitated in the RCJ beforehand and entry will not be permitted until the case is ready to proceed.
  5. Recent court business recovery plans have been issued to the profession as of 15 June 2020 confirming that hearings over the summer recess are being planned with effect from 20 July 2020.

Master’s Reviews in the High Court - QBD

  1. The Masters will continue to operate summons court and review lists remotely as per the guidance issued on 19 March 2020. The Master has commenced an administrative review of all summons listed between March and 30 June 2020 with parties expected to complete the COVID form. Contentious summons that can be dealt with by written submissions are progressing.
  2. Contested summonses suitable for written submissions will be progressed.
  3. Consideration is being given to conducting some contested matters (involving only legal representatives and the Master) using technology such as WebEx or Sightlink.

All court business has been consolidated into 5 court venues, from 26 March 2020

The default position for Civil Matters is that they will be adjourned by a judge without a hearing in most cases for a period of four weeks.

Only urgent matters will automatically be eligible to proceed by a hearing, examples of which would typically involve the immediate liberty, health, safety and wellbeing of individuals.

The courts have issued guidance on running remote hearings. There are only 14 Sightlink licences to cover courts in Northern Ireland and therefore, cases of necessity are given priority. Some feedback has suggested that the more sight link licences in use at one time, the poorer the connection quality.

Scotland

The Court of Session, Sheriff Court and All Scotland Sheriff Personal Injury Court advise that (where the parties agree) hearings may proceed by written submissions, video conference or telephone, and that interlocutory hearings (motions) will be dealt with electronically where possible. 

Updated guidance has been issued for all Courts, 1 June 2020, setting out the civil business which will be dealt with as part of the response to the backlogs caused by the COVID-19 Pandemic.

The Sheriff Court issued guidance, effective from 1 May 2020, setting out arrangements to enable proceedings to be progressed including parties being able to apply to restart cases where they consider the case suitable to be progressed remotely.

The Lord Justice General in Scotland ordered that no juries are to be empanelled after 16 March, as a consequence of which many criminal trials will not proceed in the foreseeable future.

Court of Session

A Guidance Note was published on 11 May 2020, applying to 1 June 2020 confirming that electronic signatures are accepted by the Court.

Practice Note was issued on 11 June 2020, with effect from 12 June 2020 in relation to all hearings by video conference.

A further Practice Notice, effective from 22 June, confirms that hearings will be conducted remotely for the time being, the Inner House will sit as an online court to hear civil appeals and, where documents have already been lodged with the Inner House, they must be submitted electronically for all hearings.

Civil Appeals (Inner House) may proceed by Webex or written submissions and procedural hearings (Outer House) may proceed by telephone or (with the Court’s permission) written submissions.

Parties should contact the Court in relation to cancelled business.

Documents should be filed electronically.

All Scotland Sheriff Personal Injury Court

Guidance has been issued, 15 May 2020, seeking to address the backlogs of routine business.

Only urgent limitation proceedings will continue to be issued.

Routine applications for procedural steps will be addressed as the staff work their way through the backlog.

There are to be three broad phases in all courts-

  • Phase 1: Lockdown – the current phase. Limited to urgent and necessary civil business in 10 hub courts and those cases outlined in the guidance, which can be progressed remotely.
  • Phase 2: Societal recovery - Government easing some restrictions, allowing the re-opening of closed courts - with the expectation that robust social distancing measures will necessitate an increase in digital and remote working, with few physical attendance hearings.
  • Phase 3: Move to “new” business as usual – with a form of social distancing likely to remain in place.

In ASSPIC the cohort of proofs fixed to take place during the period from 23 June until 31 July 2020 are currently under consideration.  The court will take a constructive and discriminating approach to these proofs in line with parties’ views subject to the clear understanding that these proofs will not proceed; parties should not incur expense in preparation for a proof and the proof diet will be converted to a notional diet rather than being discharged immediately.

Guidance has been issued by the Sheriff Principal ordering that no Civil Court hearings will take place until further notice, save for truly urgent civil business and that no documents should be lodged on matters which have been sisted (stayed).

All hearings listed to 19 June 2020 have been vacated and the claims sisted (stayed), telephone hearings may be used, documents can be filed at the Court electronically and the Court is sympathetic to applications to sist (stay) and vary Directions including the vacation of trials.  Wet ink signatures are no longer required on a number of documents which must be filed at Court.

Representations have been made to Sheriff McGowan, the Administrative Sheriff of the All Scotland Sheriff Personal Injury Court (ASPIC)  by leading users of the Court, including DAC Beachcroft Scotland, seeking urgent clarity on steps likely to be taken to tackle the increasing backlog of unissued directions, orders and timetables which is causing delay and uncertainty.
They have also raised the possibility of increased use of technology to accommodate hearings. A timetable is normally issued once a defence is filed and is the driver for further activity in the case, setting dates for the finalisation of pleadings, the exchange of valuations and other key steps.
The Administrative Sheriff has indicated that the delays are due to the restricted number  of court clerks able to attend the offices of court and that he will raise these issues with the Scottish Court Service and the Lord President of the Court of Session, the head of the Scottish judiciary.

Sheriff Court

All Sheriff Court business consolidated into ten Courts, across Scotland, with guidance for all of the Courts through one website. All civil hearings involving witnesses have been adjourned and essential hearings are to proceed by telephone.

The Sheriff Appeal Court has issued guidance suspending the need for wet ink signatures, requiring documents to be lodged by e-mail, sisting (staying) all new appeals following issue and sisting all scheduled appeal hearings up to 29 May 2020 (unless the Court orders the parties that the hearing is proceeding).

It is clear that there will continue to be changes in the procedures of the Courts, the Lord Chief Justice of England and Wales advising that we should expect final hearings and hearings with contested evidence to be conducted using technology in the near future.

We will continue to publish updates on the challenges presented by COVID-19, which are available on our website.

Authors

David Williams

David Williams

Leeds

+44 (0)113 251 4844

David Johnson

David Johnson

London - Walbrook

+44 (0)20 7894 6856

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