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 6 April 2020

All the latest information is in bold.

The instructions from the Prime Minister for 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.

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, 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-APIL agreement reached in Scotland

Guidance for Scotland’s Sheriff Courts available on one website

Further Guidance issued in the Queen’s Bench Division

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.

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 20 April 2020 (which may be extended) and the parties are to look to take a consensual approach to handling claims.

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.

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.  If resistance to the provision of records is received, consideration should be given to the time allowed in Directions for obtaining records and to seeking extensions of time where appropriate in order for the records to be obtained and sent to experts.

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. 

When seeking to rearrange Directions for the service of medical evidence, please bear in mind the timescales for the medical examinations you will seek and ensure that your correspondence with the Claimants’ solicitors is sensitive to their clients’ wishes to follow the Prime Minister’s instructions and to ensure that they maintain social distancing, alongside their desires to resolve their claims.

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 2020the 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. 

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 ndicating 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, drop boxes and e-mail contacts being 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
  • The dedicated e-mail address for the lodging of urgent claim forms or applications requiring immediate judicial consideration is immediates@hmcts.x.gsi.gov.uk.
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. Guidance has been issued.
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.
  • The Interim Applications Court has issued Guidance in relation to urgent applications.
  • Senior Master Fontaine issued a Guidance Note on 25 March 2020 and general Queen’s Bench Division instructions which include requirements for the preparation of electronic bundles have been issued. A further Guidance Note of 3 April 2020 confirmed that documents with electronic signatures are accepted in the Queen’s Bench.
  • Guidance Notes in relation to hearings before them have been produced by Master Cook, Master Giddens, Master McCloud, Master Sullivan and Master Thornett.
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 the table below

Barnsley

Cases viewed as non-essential adjourned for 12 weeks

Berkshire

All suitable hearings should proceed by video link, telephone or Skype with witnesses giving evidence remotely where possible

Birkenhead

Hearings vacated

Court has asked parties to agree 6 month stays and file consent orders rather than apply for a stay

Birmingham

Hearings vacated

Bradford

Trials adjourned

Cambridge

Hearings vacated

Cardiff

To stay claims and vacate hearings and trials where required as it does not expect anyone to attend Court contrary to the Government’s guidance. 

Central London

 

Parties asked to stop filing documents

90 day extension granted in respect of all Directions

Chester

Trials vacated

Clerkenwell and Shoreditch

Trials vacated

Dartford

Hearings vacated

Devon and Cornwall

 

All non-urgent trials to 10 April 2020 vacated and to be relisted as remote hearings

Guidance issued

Doncaster

Face to face hearings converted to remote hearings

Edmonton

Hearings vacated

Gloucester & Cheltenham

 

Hearings vacated

High Wycombe

Hearings vacated

Huntingdon

Trials vacated

Kingston upon Hull

Trials vacated

Kingston upon Thames

Hearings vacated

Leeds, North Yorkshire and West Yorkshire

 

Hearings should take place by telephone or remotely, should only be face to face if social distancing is possible, and should be adjourned if a remote hearing or social distanced hearing is not practicable

CCMCS, interim applications and applications for permission to appeal should take place remotely

On cases listed in April 2020, Orders being sent to the parties asking if trial can proceed remotely or should be adjourned

Small Claims Track hearings to 20 April 2020 vacated

Stage 3 MOJ to take place remotely

Guidance issued

Note for judiciary on conducting remote hearings

Liverpool, Cheshire and Merseyside

All hearings should take place remotely

All Small Claims Track Hearings vacated until after 4 May 2020

All Fast Track and Multi-Track trials to 22 April 2020 vacated

All complicated appeals to be stood down. 

CCMCs, interim applications and applications for permission to appeal should take place remotely.

Liverpool

Automated e-mail replies indicate that no further face to face hearings until further notice

Unless notice of a remote hearing has been sent to the parties, assume that hearings have been stood down

Manchester

Guidance issued which is likely to be extended to Stockport and Wigan

Face to face hearings adjourned

All CCMCs and PTRs will be held remotely

All other hearings (if all parties consent) will be held remotely

Mansfield

Hearings vacated

Merthyr

Hearings vacated

All Stage 3 MOJ hearings adjourned

Milton Keynes

Hearings vacated

Newcastle, Darlington and Teeside

 

Guidance issued

Fast Track and Small Claims Track trials to 29 May 2020 vacated, to be relisted (on application) in a trial window from 3 August to 27 November 2020

In Multi-Track cases the parties will be at liberty to extend the directions timetable by up to 90 days without seeking the Court’s permission

Assume that hearings which go ahead will be by telephone and that electronic bundles should be filed

Electronic signatures are acceptable on all documents in those Courts including witness statements

All Small Claims and Fast Track Trials to 9 April 2020 vacated

Northampton

Hearings vacated

North Shields

Hearings vacated

Preston

Hearings vacated

Sheffield

All application hearings on 24 March vacated.

Trials vacated

Face to face hearings converted to remote hearings

Skipton

Face to face hearings converted to remote hearings

Watford

Hearings vacated

Walsall

Trials vacated

Wandsworth

Trials vacated

Wigan

Trials vacated


The Court Funds Office
  • The Court Funds Office, which handles Payments into Court, has introduced BACS (rather than cheque) payments.
  • Electronic signatures 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
  • Guidance issued by the Chief Coroner, 26 March 2020 and 19 March 2020
    • remote hearings should continue to take place
    • 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.
    • instructed Senior Coroners to adjourn jury inquests ‘of significant length’ due to commence between 31 March and 28 August
    • 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
    • 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.

Northern Ireland

  • 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 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
  • all proofs, proof before answers and civil business involving witnesses discharged (all trials vacated) until the end of April 2020, with a view to relisting the hearings
  • where the parties agree, Civil Appeals in the Court of Session and Sheriff Appeal Court may proceed by written submissions only or principally by written submissions with a restricted oral hearing, and where possible hearings will be by telephone.
All Scotland Sheriff Personal Injury Court
  • Guidance issued by the Sheriff Principal, 27 March 2020
    • no Civil Court hearings will take place until further notice, save for truly urgent civil business
    • no documents should be lodged on matters which have been sisted (stayed).
  • all hearings listed to 19 June 2020 vacated and the claims sisted (stayed)
  • telephone hearings may be used and documents can be filed at the Court electronically
  • the Court is sympathetic to applications to sist (stay) and vary Directions including the vacation of trials
  • wet ink signatures no longer required on a number of documents which must be filed at Court
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 adjourned
  • essential hearings toproceed by telephone
  • Sheriff Appeal Court issued guidance, 25 March 2020
    • suspension of the need for wet ink signatures
    • documents are required to be lodged by e-mail
    • sisting (staying) of all new appeals following issue
    • sisting of all scheduled appeal hearings up to 29 May 2020 (unless the Court orders the parties that the hearing is proceeding)
  • Guidance issued by the Sheriffdom of Tayside Central and Fife, adjourning proofs (trials) listed to August 2020 and indicating that no trials will be listed before August 2020
  • Guidance issued by the Sheriffdom of Glasgow and Strathkelvin, agreeing to telephone or written hearings where the parties agree and vacating all proofs (trials) to August 2020
  • Sheriff Court in Edinburgh sisted (stayed) a claim, discharging the timetable in the claim up to 19 June 2020.

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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