Covid-19 – litigation in the time of a pandemic SECOND UPDATE

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COVID-19: Litigation in the time of a pandemic SECOND UPDATE

Published 19 marzo 2020

As the positions adopted by each jurisdiction across the United Kingdom differ, and as the rules in relation to Court procedure and hearings are changing from day to day, this alert sets out the current position being taken by the courts by jurisdiction across the UK.

In preparing this alert, we note that Spain and Ireland have suspended most (but not all) judicial proceedings, and in Gibraltar the Chief Justice issued Contingency Rules (16 March 2020) which vacate all Court hearing dates and impose a stay on all civil actions until 7 days after the Court Registry has fully reopened to the public, the Rules being in effect for a minimum of 30 days.  The position adopted by the Courts across the UK is expected to change as self-isolation and social distancing become the (hopefully temporary) norm.

England and Wales

In England and Wales, the judiciary is being squarely led by the official advice from central government, guidance from the Lord Chief Justice, comments by the Senior Master of the Queen’s Bench Division and, in some Courts, a publication from the Court Service advising that those called to attend at Court should still attend unless they are experiencing symptoms.  

At a CCMC on 16 March 2020, Master Davison ordered that the parties have permission to extend the timetable by consent by up to 56 days (rather than the 28 allowed by r3.8(4)) (O’Driscoll v F.I.V.E. Bianchi SPA).  Alongside this, we have seen one of the High Court Masters indicate that he is working from home and will only deal with hearings by telephone and the High Court Business and Property Courts indicate that it is exploring how future hearings should proceed and seeking to facilitate home-working for the Court staff. 

On 18 March 2020 the Court Service published guidance for the use of audio and video technology in Court hearings, advising 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, implying that it may be used widely for hearings in the near future.  The Lord Chief Justice advised Judges, on the evening of 18 March 2020, that the default position for hearings should see some or all of the participants attending remotely and that the Courts should be flexible enough to deal with any type of hearing (including appeals) through remote attendance.  The decision on how hearings should be handled is subject to decisions by the Designated Civil Judge and Designated Family Judge for each Court which may lead to inconsistent processes between locations.

The Designated Family Judge for Berkshire has indicated that all suitable hearings should proceed by video link, telephone or Skype with witnesses giving evidence remotely where possible and Cardiff County Court has advised that it will stay claims and vacate hearings and trials where required as it does not expect anyone to attend Court contrary to the Government’s guidance.  At present, the discretion to allow telephone and video hearings remains with individual Courts and Judges, in contrast with the position in Scotland (below).

From 19 March 2020 a number of the counters in the Queen’s Bench Division of the High Court and the Civil Appeals Registry counter (in the Royal Courts of Justice) will close, litigants being directed to contact the Court by e-mail which may indicate a move to the staff working from home. The physical building is still open and the Court of Appeal has instigated a drop-box at their registry for filing documents. It has also been indicated that urgent filing for the Administrative Court can be left in the RCJ Fees Room.  Where physical documents still need to be filed at the Queen’s Bench Division or Court of Appeal (as opposed to CE-filing), there is merit in ensuring that this is done in good time.

The Supreme Court has indicated that whilst (as at 17 March 2020) it was not planning for its Registry to close before the Easter vacation, flexibility would be allowed in relation to the filing of papers in order to allow parties to avoid travelling to Central London.

Whilst the Lord Chief Justice has indicated that it is of vital importance that the administration of justice does not grind to a halt, we have seen regulatory trials and an inquest adjourned as jurors were not available; an indication has been given that no new jury trial in England and Wales which is expected to last for more than three days should be commenced before the end of April.  

The Presidents of the Employment Tribunals in England and Wales and Scotland published guidance on 18 March 2020 which provided that future case management hearings should take place by telephone or other electronic means unless this would be contrary to the overriding objective, and the parties and Judges should consider whether preliminary hearings can take place electronically or by telephone.  Further, whilst it is not normal for final hearings or substantive issues hearings to take place by telephone, from Monday 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.

As home-working becomes the default position for many, it is useful for us to note that the Civil Procedure Rules (rule 5.3) permit the use of electronic signatures on Court documents in England and Wales.

Northern Ireland

The Department of Justice published an update for Court Business Continuity Arrangements on 18 March 2020, confirming that Judges should not require the attendance at court of anyone who does not need to be there or who has expressed specific individual concerns.  

We expect further updates, increasing the restrictions on the use of the Courts, to be published over the next few days.  

Scotland

On 18 March 2020, the Court of Session discharged all proofs, proof before answers and civil business involving witnesses, i.e. vacated all trials until the end of April 2020, with a view to relisting the hearings.  This was followed, on 19 March 2020, by the Sheriff Court (excluding the All Scotland Sheriff Personal Injury Court) ordering that all hearings where witness are required to attend are adjourned.  On 17 March 2020 the All Scotland Sheriff Personal Injury Court advised that it is sympathetic to applications to sist (stay) and vary Directions including the vacation of trials.

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 three Courts 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.  Documents may be filed electronically and the All Scotland Sheriff Personal Injury Court has advised that wet ink signatures are no longer required on a number of documents which must be filed at Court (assisting solicitors in working from home).

The Lord Justice General in Scotland has 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.

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 the 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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