Litigation during lockdown: UK courts keep calm and carry on – Mathilde Groppo

3 04 2020

When the Prime Minister announced the lockdown on 23 March 2020, the UK effectively aligned its response to the COVID-19 pandemic to that of other European countries. For litigation practitioners, this raised a number of queries relating not only to the effect this would have on their practice as a whole, but also – more pragmatically – to the effect this would have on upcoming hearings and the conduct thereof.

Things are moving fast in the present circumstances, and it was unclear how the lockdown would impact on the intention expressed by the Lord Chief Justice in a message issued on 17 March (a few days after the Government announced its herd immunity strategy):

In all jurisdictions steps are being taken to enable as many hearings as possible to be conducted with some or all of the participants attending by telephone, video-link or online. Many court hearings will be able to continue as normal with appropriate precautions being taken. We must make every effort to maintain a functioning court system in support of the administration of justice and rule of law.”

Hearings continue to be held

Looking to other countries, one could have expected the activity of the courts to be paused or at the very least significantly reduced. Italian and Spanish courts are currently closed. Those in the state of New York have significantly reduced their activities, dealing mainly with urgent matters and organising for other matters to be dealt with remotely. French courts have also largely shut down, with all hearings having been cancelled and postponed and the courts maintaining their activity only in relation to “essential business”. Guidance has been issued in this regard and is being updated regularly; broadly speaking, this covers urgent matters and some criminal matters. The French equivalent of our CE-filing system is operating but guidance issued by the Paris Bar suggests that some of the filings and messages uploaded on that platform are not being addressed by the Court.

Contrary to this, English courts remain open (albeit with a reduced number of staff). Guidance is being published and updated regularly on the Courts and Tribunals Judiciary’s website. Broadly speaking, the courts are consolidating their work into fewer buildings; some buildings are open to the public, some are staffed but are not open to the public, and some are temporarily closed.

Jury trials that are underway continue but there are no new jury trials. Crown Courts and Magistrates’ courts are only covering urgent work. Specific directions are being given in immigration matters, with priority being given to urgent cases such as bail applications. The Royal Courts of Justice are working according to the High Court contingency plan. At appellate level, only urgent matters are proceeding; as regards High Court and Senior Courts Costs Office work, hearings continue to be conducted remotely, where possible and as appropriate with reference to the Remote hearings protocol for civil hearings. The only exception relates to employment tribunals in relation to which the guidance indicates that all hearings have been postponed (including at the appellate level).

At the time of writing, it has been 10 days since the lockdown was announced. There does not yet appear to be a consistent practice in terms of hearings: some take place by telephone, others by way of videolink using Skype for business, and it seems that in some cases hearings have taken place at Court but only with Counsel and the Judge in attendance, sitting far apart from each other to respect social distancing guidelines. Where hearings take place remotely, my experience suggests that the Court sometimes makes arrangements for the hearing itself, and on other occasions asks one of the parties to make arrangements (and bear the costs thereof).

New procedural rules

Apart from dealing with the practicalities of remote hearings, legal practitioners are having to familiarise themselves with new Practice Directions. On 25 March 2020, the Master of the Rolls and the Lord Chancellor signed Practice Direction 51Y (PD) in relation to video or audio hearings during the Coronavirus pandemic. Its stated purpose is to clarify the manner in which the court may exercise its discretion to conduct hearings remotely in private and the steps the court may make to ensure access by the public to remote hearings that have been held in private through making available audio or video recordings of those hearings at a time when the courts are operating normally. It is intended to remain in force “for no longer than the Coronavirus Bill is intended to remain in force”.

Seven days later, on 2 April 2020, Practice Direction 51ZA (PD) principally in relation to the extension of time limits during the Coronavirus pandemic was signed and immediately came into force; it will remain into effect until 30 October 2020. Its main effect is to allow the parties to agree an extension up to 56 days under CPR 3.8 without formally notifying the court (rather than the current 28 days). This supplements the current practice where Claimant and Defendant lawyers are agreeing to relax rules in the light of the current disruptions, for instance by accepting service by email (which the Law Society Gazette even reports is being encouraged as a standard practice by the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers).

We are all learning as we go along and PD 51ZA is also clarifying some aspects of PD 51Y, clarifying that a person seeking permission to listen to or view a recording of a hearing may do so by request and is not required to make a formal application under the CPR. This is evidently necessary to further the principle of open justice.

Another Practice Direction 51Z (PD) was signed and came into force on 27 March 2020 to complement the provisions of the Coronavirus Act 2020 and prevent imminent evictions and delay possession proceedings, and we can expect that more such practice directions will come into force as the courts and legal practitioners become more familiar with the practice of remote hearings.

Potential issues arising in relation to remote hearings

The efficiency with which the courts have adapted to the current pandemic is remarkable. Despite this, some issues arise in relation to the new sets of practices imposed by the current remote working conditions.

A major issue was the need to ensure the furtherance of the principle of open justice in the light of the fact that hearings are being held remotely. Readers will be familiar with the general rule that hearings are carried out in, and judgments and orders are, public. Derogations can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. This raises the question as to how a member of the public wishing to attend a hearing can do so. Recordings and video recordings can be accessed by any member of the public, in accordance with the new PD 51ZA. However, this is after the event; it is conceivable that there may be a delay between the moment the request for access is made, and when the individual in fact accesses the recording (whatever the reason for the delay, which may include a potentially large number of requests for access to recordings). This could be problematic if an individual wishes to attend a hearing on the day on which it is listed (for instance, to ensure that any reporting thereof will be contemporaneous). The daily cause lists now indicate how hearings are proceeding, as well as an email address to contact in order to join the hearing remotely (whether by way of telephone, videolink or otherwise).

This raises specific issues, however, where a hearing starts in public and later proceeds in private. Despite the warnings given by the judge, parties will be keen to ensure that only those allowed to be present during the part of the hearing which proceeds in private are “on the line”, particularly where the hearing is proceeding by telephone. During one recent such hearing, this issue was solved by contacting an operator of the secure conference call platform, who confirmed the number of individuals who remained on the line. In the light of the number of individuals who were initially on the call, the Judge was able to confirm that those who were not allowed to be “present” for the private part of the hearing had left the line. This is more cumbersome than to do this during a regular, in person hearing – but it works.

Another issue is that of access to justice. Where it is one of the parties rather than the Court who makes arrangements for the remote hearing, that party also bears the costs thereof (which may involve solicitors billing for the time spent making the arrangements and/or paying the fees invoiced by the service provider for that conference call, in circumstances where specific providers must be used in order to ensure that the lines are secure and that recordings can be made available to the Court Reporting and Transcription Unit). The costs will vary depending on the length of the hearing, but also on the number of individuals on the line. Although the Court does appear to be making arrangements for some hearings, it is fair to say that where a party has to bear these additional costs (which would not be incurred in normal circumstances) it will add to the costs burden of the litigation. It remains to be seen whether judges will consider that those can be recovered by the prevailing party from the other side.

Overall, the practicalities of working remotely tend to cause delays. Arranging a remote hearing, liaising with the Court, even conducting a hearing remotely, all take longer than a regular ‘in person’ hearing would do. It is a game of trial and error, which requires cooperation and patience from all parties involved as practitioners discover new ways of working. This is exactly what the Remote Courts Worldwide website, hosted by the Society for Computers and Law, funded by the UK LawTech Delivery Panel, and supported by Her Majesty’s Courts & Tribunals Service, is intended to facilitate. Its statement of intent is as follows:

As the coronavirus pandemic spreads and courts around the world are closing, this website is designed to help the global community of justice workers – judges, lawyers, court officials, litigants, court technologists – to share their experiences of ‘remote’ alternatives to traditional court hearings.”

The practices that are currently being explored will undoubtedly have a lasting impact on our practice, even after the country returns to its new “normal”. In the meantime, and as we have been warned about the length of the disruptions, the UK appears to be exceptional in its efforts to (and success in) maintaining judicial activity. Of course, the situation is changing on an almost daily basis, and so it remains to be seen whether it will be possible to continue doing so in the coming weeks, as the country braces itself for the peak of the infection.

Mathilde Groppo is a member of the Paris Bar and of the Franco-British Lawyers Society and is practicing in England and Wales at Carter Ruck as a Registered European Lawyer


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