Civil Procedure, Litigation and the Coronavirus

This article was written by Victoria Windle and Tom Mountford. The first two parts, addressing the courts’ initial response to the restrictions, and human rights considerations, are available here and here.

2.     The questions whether hearings will continue to be effective, how and when new hearings will be listed and how remote or physical hearings will be managed in the context of the covid-19 outbreak have been subject to detailed guidance from the Courts in recent days, in the form of practice directions, guidance documents and directions from the senior judiciary.  The guidance put in place varies considerably between the different courts and tribunals and even geographically.  For example, the Designated Civil Judges have been issuing specific guidance for cases proceeding in Manchester, Birmingham and elsewhere. The content of that guidance is beyond the scope of this article.

 
3.     As litigators consider how to progress and manage litigation in this period of uncertainty, in our view it is important to look not only to the new guidance and powers emanating by the courts specifically on account of Covid-19, but also to the broad and flexible existing powers and principles contained in the civil procedure rules.
 
4.     Members of the senior judiciary have clearly indicated that litigation is expected to continue, despite the disruption caused by the Covid-19 restrictions, with as many hearings and trials taking place fully remotely as possible.
 
5.     The prevalence of illness itself, and the social distancing measures taken to reduce the spread, mean that, for the courts as for the rest of the country, the number of people available to work is likely to be somewhat or significantly reduced, and those who are able to work are likely to be doing so in ways which may be less efficient. Nonetheless, the courts wish to keep cases moving through the courts, in order to avoid a backlog of cases which would, as the Lord Chief Justice put it in his message of 19 March 2020, mean access to justice would “become a mirage”.
 
6.     For those reasons it seems likely that the courts will want, where possible, to allow cases to move through their various stages, whilst at the same time (i) reducing the number of hearings which are required, and (ii) reducing the number of issues to be addressed or determined at any hearing, so as to make hearings shorter and reduce the burden each case places on the court system.  
 
7.     Different solutions will be required for the different stages of litigation, but it seems possible for parties and the courts to adopt some of the approaches identified below to the problems which are likely to be encountered.  

Time Limits

8.     On 2 April 2020, new Practice Direction 51ZA came into effect to provide greater latitude to parties to agree longer extensions of time in light of the Covid-19 disruption.  It will be in effect until 30 October 2020.
 
9.     Paragraph 1 of the PD provides that the reference to 28 days in CPR rule 3.8 should be read, during the period in which PD51ZA is in effect, as 56 days.
 
10.     In relevant part, CPR rule 3.8 will therefore now be read as follows (emphasis added):
 
“3.8
….
(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).
 
(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 56 days, provided always that any such extension does not put at risk any hearing date.”
 
11.  Paragraph 4 of the PD also provides that, so far as compatible with the proper administration of justice, the court will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time to comply with directions, the adjournment of hearings and applications for relief from sanction.
 

Overriding Objective and Case Management Powers  

 
12.  Although the way in which different stages of litigation will be managed will to a large degree turn on the specific procedural rules governing those stages, arguments on the appropriate way to manage cases may also be made by reference to the general principles contained in the overriding objective at CPR rule 1.1.
 
13.  Particularly relevant facets may include: ensuring parties are on an equal footing (rule 1.1(2)(a)), ensuring that a case is dealt with expeditiously and fairly (rule 1.1(2)(d)) and allotting to it an appropriate share of the court’s resources (rule 1.1(2)(e)), noting that those resources may be more constrained during the Covid-19 outbreak.  Courts are required to give effect to the overriding objective when exercising any power given to them by the CPR (rule 1.2(a)).   
 
14.  Parties are specifically required to assist the courts to further the overriding objective (rule 1.3) and should consider requests from opponents for modifications to usual case management procedures in that light.
 
15.  Courts have a standing duty to actively manage cases under CPR rule 1.4, including to consider whether the likely benefits of taking a particular step justify the cost of taking it (rule 1.4(2)(h)) and to deal with as many aspects of the case as they can on the same occasion (rule 1.4(2)(i)).
 
16.  The courts’ specific case management powers in CPR part 3 include extending or shortening the time for compliance with any rule or PD (rule 3.1(2)(a)) and holding a hearing by telephone or by using any other method of direct oral communication (rule 3.1(2)(d)).  In respect of telephone hearings, in a judgment handed down on 8 April 2020, Mr Justice Fordham explained that telephone hearings, conducted in the ways described in his judgment, did not, in his view, involve any derogation from the open justice principle (Jankowski v Regional Court of Torun [2020] EWHC 826 (Admin) at [2] – [3]).
 

Case Management Conferences

17.  The CPR requires parties to co-operate in preparation for a CMC, and the various court guides recognise that failures to do so may affect the costs order made (see e.g. the Commercial Court Guide at D5.5(c) in respect of failing to agree the Case Memorandum). The courts will doubtless be astute to recognise, and willing to penalise in costs, any failure to cooperate prior to a CMC, whether regarding the CMC documents, directions, or other issues to be resolved.
 
18.  In addition, although the Commercial Court Guide notes that case management directions will not usually be made by consent without attendance (para D8.3(a)), the courts may well be more willing than previously to dispense with a hearing in any case where directions or an order are agreed between the parties (and where the parties specifically indicate that they no longer consider a hearing to be necessary).  Alternatively, short telephone or video hearings may be listed simply to take the court through the approved order and answer any questions the Judge may have before approving the order.  
 
19.  The courts may also be willing at an earlier stage than usual to consider and make orders putting in place technology, or other tools which can be expected to assist the case to proceed remotely, including for example the earlier use of electronic bundling facilities than might otherwise be ordinary or required.  It is notable that some of the Court guidance has imposed page limits on the documents that can be filed electronically for hearings during this time.  For example, the Designated Civil Judge for Greater Manchester has directed that in respect of all interim applications CMCs, CCMCs and PTRs in the District Registry of the QBD in Manchester documents for the hearing to be sent to the Judge should not exceed 100 pages (it is not clear whether this includes skeleton arguments), noting that the Judge may not have access to the Court file.  The ability to give the Judge access to an electronic platform which has been put in place in larger cases may not only make matters more streamlined but also allow parties to have more documents available before a Judge during a hearing (and avoid difficult and costly exercises which seek to create sufficiently inclusive limited bundles of core documents and extracts of documents in advance of hearings). 
 
20.  As discussed in a little more detail below, the courts have the power to control both disclosure and the form and content of witness evidence, and may well use those powers at the CMC stage in order to reduce the volume of material which will come before the court at trial, and ensure that hearings are as efficient as possible.
 

Costs Management

 
21.  At the first CMC of any case allocated to the multi-track valued at less than £10 million, the court will consider costs management and budgeting under CPR rules 3.13-3.18 (and may do so on a discretionary basis where the value of the claim exceeds that limit). The parties may anticipate that additional costs may be incurred in the course of proceedings as a result of Covid-19, including perhaps as a result of needing to use additional software or resources, or needing those resources earlier. The rules applying to the disclosure pilot in the Business and Property Courts allow the parties to postpone seeking to agree the costs of the disclosure stage until after the parameters of disclosure have been determined (see CPR part 51U para 22.2). The courts may be willing to adopt a similar “wait and later seek to agree” approach to aspects of costs budgeting which may be affected by Covid-19, for example the costs of witnesses attending hearings or the costs of providing for remote hearings. 

Disclosure in the Business and Property Courts

22.   The disclosure pilot operating in the Business and Property Courts is expressly designed to limit disclosure (see PD51U para 6.6). In McParland & Partners Ltd and another v Whitehead [2020] EWHC 298 (Ch), the Chancellor, Sir Geoffrey Vos, recently reiterated the principles of proportionality and the need for co-operation, which underpin the scheme. As proportionality includes the concept of the proportionate use of the court’s resources, it seems possible that the balance will tip further in favour of refusing disclosure where the necessity or proportionality is debatable. In addition, it is to be expected that the courts will use the sanctions available to them, including dismissing any application for Extended Disclosure, the adjournment of hearings, and adverse costs orders (see PD51U para 10.3), to encourage co-operation and proportionality.
 

23.  In addition, the Disclosure Pilot allows the court:
 
a.     To determine whether to order Extended Disclosure without a hearing (PD51U para 6.2). If the courts make use of this power, perhaps relying on written proposals in the Disclosure Review Document, parties should keep in mind when making their proposals that there is no presumption of a right to Extended Disclosure and that the court can apply different models to each party’s disclosure on a particular issue.
 
b.     To order Extended Disclosure in stages (PD51U para 9.4 and 9.7(6)). This power might be used to keep litigation proceeding towards trial, but postpone determining more complex disclosure issues to a later date, where hearings may be easier to accommodate.
 
c.      To include in an order for Extended Disclosure a provision requiring the use of specified software or analytical tools (PD51U para 9.7). This power might be used to ensure that from an early stage the case is prepared in a way which facilitates a fully paperless trial.
 
24.  The disclosure pilot allows for Disclosure Guidance Hearings, which are clearly suitable to be conducted remotely. Perhaps of more interest is that such hearings will “have a maximum hearing length of 30 minutes and a maximum of 30 minutes pre-reading” (PD51U para 11.2). The courts might apply a similar standardised approach to the time allowed for other types of hearing, consistently with, for example, the standardised time estimate for renewed permission hearings or interim relief hearings in the Administrative Court Judicial Review Guide (paras 8.5.1 and 13.2.3).

Evidence

25.  Where applications require evidence to be provided by affidavit, e.g. committal applications and applications for interim injunctions, the Covid-19 restrictions present an obstacle. An affidavit must be sworn in the presence of the commissioner for oaths, so an affidavit cannot be sworn remotely, or when in self-isolation. It is not clear that there is yet any effective solution to this difficulty. Evidence supported by a statement of truth can be prepared, and the statement of truth completed, remotely, and therefore the same problem does not arise.
 
26.  The courts may well actively use their powers to impose orders controlling the form and content of evidence, and impose sanctions in respect of witness statements which do not comply with those orders. CPR 32.1 provides:
 
32.1—(1) The court may control the evidence by giving directions as to—
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination.
 
27.  CPR rule 32.2(3) provides further powers to the court to control witness evidence:
(3) The court may give directions—
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements.
 
28.  A standing example of the use of this power is the Commercial Court Guide at H1.1, which limits witness statements to 30 pages, unless permission is given for longer statements.
 
29.  In Maclennan v Morgan Sindall (Infrastructure) Plc (Practice Note) [2014] 1 W.L.R. 2462 it was stated that (i) the court will ordinarily consider its powers under CPR rule 32.2(3) after less intrusive measures for ensuring the fair and efficient conduct of the trial have been considered and rejected; (ii) the powers are best exercised before any witness statements have been prepared, but may be exercised subsequently; and (iii) in order to minimise the risk that any directions made by a court in exercise of the powers may be seen, with the benefit of hindsight, to cause unfairness, parties should ensure that the court has the fullest possible information available to it and should cooperate in a pragmatic and sensible manner. The power at CPR rule 32.2(3) is, therefore, one which can be used at the CMC stage, or at a hearing or trial, and the court may determine that it’s use is not unreasonably intrusive in the current situation.
 
30.  The court must, of course, use this power to control evidence to further the over-riding objective, and must comply with Article 6 ECHR (see O’Brien v Chief Constable of South Wales [2005] 2 A.C. 534). Nonetheless, this is a powerful tool to oblige the parties to focus on the determinative issues in the case and to shorten hearings. Furthermore, a decision to limit evidence may be characterised as a case management decision, reducing the scope for any appeal against the decision.

Expert Evidence  

31.  Under CPR rule 35.4(1) no party may adduce expert evidence without the permission of the court, and the rules in CPR part 32 which permit the court to restrict the form and content of evidence apply equally to expert evidence. The courts can be expected to be even more willing to use those powers to limit expert evidence to that which is strictly necessary, and direct single joint experts where possible. The courts may also choose to make more use of the power to hear expert evidence concurrently (hot-tubbing) under CPR 35PD.11, not least because it permits the court to initiate the questioning. The courts may also be especially keen to make use of document sharing facilities, including electronic bundle facilities, when hearing expert evidence which involves plans, diagrams or other complex documents.

The hearing

32.  Regardless of which of the various methods of holding a remote hearing the court adopts, and the advantages and difficulties presented by each including in relation to satisfying the requirements of open justice, the court can be expected to make full use of its case management powers before and during the hearing. Almost all of the following measures are already used to some extent, but may be more rigorously adopted or enforced:
 
a.     the parties may be required to deliver physical bundles early, and refused permission to add to them, so that any virus which may have existed on surfaces can be expected to have become inactive;
 
b.     alternatively, the parties may be required to use bundles which are prepared and referred to electronically, although this might take a slightly different form to fully electronic trials where everyone is in the same room, where the bundle is controlled by one independent operator;
 
c.      the court may impose and enforce a timetable for any hearing, allowing only a fixed amount of time for each party at each stage – note that CPR rule 29.8 anticipates that such a timetable may be set in multi-track cases at an early stage, but 29PD at 10.3 provides that at trial “The judge may confirm or vary any timetable given previously, or if none has been given set his own”;
 
d.     in trials, the court may dispense with opening addresses, as permitted for multi-track cases under 29PD at 10.2;
 
e.     the court may limit cross examination, either by limiting the issues to be explored on cross-examination, under CPR r.32.1(1), or by limiting the trial time to be devoted to cross-examination of a particular witness (see, e.g., Hayes v Transco Plc [2003] EWCA Civ 1261; Three Rivers DC v Bank of England [2005] EWCA Civ 889). Note that the Court of Appeal will only interfere with a judge’s decision to limit cross-examination if the decision is outside the acceptable range of decisions at which a judge can legitimately arrive (see Hayes v Transco Plc);
 
f.      where there are multiple parties, the court may permit only one claimant and one defendant party to address it on each issue, such that there is no repetition of submissions;
 
g.     the court may encourage or require the parties to provide submissions in writing, either before any oral hearing, or instead of any oral hearing, and limit the length of such submissions – in Attorney General v Scriven 4 February 2000, unrep., CA, Simon Brown LJ said: “The courts are not required to listen to litigants, whether represented or not, for as long as they like. It is for the court to control its own process and it is well-entitled to bring arguments to a close when it concludes that its process is being abused and that nothing of value will be lost by ending it”.
 
33.  The court may have to consider how to weight the evidence of a witness who fails to attend a (remote) hearing, citing a Covid-19 reason, or technological difficulties. The courts are used to deciding whether or not adverse inferences can be drawn from the failure of a party to attend court for cross examination, or otherwise failing to comply with an order, for example for disclosure (see, eg, Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794). The courts can be expected to apply the same approach in this situation, recognising the difficulties of the current position, whilst at the same time requiring a clear explanation for any failure, so as to ensure that the situation is not being used as an excuse, or to abuse the process of the court.

Conclusion

34.  We believe that the broad and flexible civil procedure tools already at litigators’ disposal will enable new and existing claims to be progressed through the courts effectively during the covid-19 outbreak.
 
35.  Parties should expect the courts to look to the parties to streamline procedural steps, to agree matters where agreement is at all possible and to assemble and present information to the courts in ways which are focused and digestible.
 
36.  Parties who give early and careful thought to the proportionate management of their cases are likely to have the ear of the court. 
 
This article was written by Victoria Windle and Tom Mountford.