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 29 April 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.

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:

ABI – ACSO Protocol extended to 5 June 2020

West Midlands Police suspends provision of police reports

Electronic bundle repository to be introduced by the Administrative Court

Updated Guidance provided by the Birmingham County Court and Birmingham District Registry (QBD)

Updated Guidance provided by the Manchester County Court

A Pilot has been launched for fast track and multi track cases in Newcastle, Sheffield and Teeside County Courts

Lord Chief Justice of Northern Ireland issued Business Continuity update

The Court of Session published a Guidance Note on 11 May 2020

Sheriff Court guidance enabling claims to be progressed, effective from 1 May 2020

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. On 17 April 2020 the Protocol’s application was extended by four weeks, to 20 May 2020, and therefore it freezes limitation for eight weeks.

In Scotland, the ABI and APIL have prepared an agreement, tthrough which no limitation defences will be raised in respect of the period from 30 March 2020 to 20 May 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, will be in place until 22 May 2020 and will be reviewed in the week commencing 18 May 2020 and may be extended.  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 ad 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 5 June 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.

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.

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.

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. 

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.

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.

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
  • 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.

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 week commencing the 11th May 2020, to include civil matters.

County Court:

  1. Judges will deal with Civil Bills if matters are agreed or approval is required.
  2. Consideration will be given to minor settlements being dealt with administratively.
  3. It is not anticipated at this stage that contested hearings will proceed at this stage.
  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:

  • All Civil Cases will continue to be adjourned, but a Judge will now undertake administrative reviews of QBD cases listed for weeks commencing 11 and 18 May 2020.  Parties should collaboratively fill the relevant COVID Court form and return to court prior to 21 May 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.
  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 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 eight weeks.

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

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. 

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.

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 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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