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In light of the COVID-19 outbreak and the protective measures which the UK government has introduced, litigators across the country are asking one burning question: will hearings go ahead, and if so how?
In a mini-series of three articles we address:
1. The current position taken by Courts, Tribunals and other relevant bodies and key issues for litigators.
2. Civil procedure: the CPR and the procedural tools to manage Covid-19 disruption.
3. Human rights considerations.
1. In this first article, it is worth noting that the current position is changing so rapidly that by the time of reading, there are bound to have been further developments.
2. It is clear that the Courts are trying to balance the objective of public health and protection with the objective of the continued proper functioning of the administration of justice (including supporting the rule of law). These objectives are presently in considerable tension and the Courts' efforts to balance are taking place in a highly fluid situation, with the Government’s public health guidance changing rapidly.
3. On Tuesday 17 March 2020, the Bar Standards Board made clear that compliance with Government and Public Health England Guidelines will not constitute a breach of barristers’ professional obligations. So, for barristers who may have to self-isolate shortly before or on the day of a hearing or trial, their duty to self-isolate trumps their professional obligation to attend Court. However, the BSB has stressed that barristers, “should ensure that you comply with any relevant obligations arising from following that guidance, particularly your duties to the court and your clients (e.g. if you need to cease to act or return instructions, you should clearly explain to your client or solicitor the reasons for doing so)."
4. Also on Tuesday 17 March, the Lord Chief Justice issued a statement that included the following indication of the current direction of travel:
“Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible."
“Our immediate aim is to maintain the service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.”
5. Again on Tuesday 17 March, the Bar Council urged the Courts to abandon jury trials and more generally to:
“not require[e] judges, barristers and others to attend hearings in person.”
6. This led the Lord Chief Justice to issue a further statement late in the evening of Tuesday 17 March, confirming that no new jury trials expected to last more than 3 days would be commenced. The LCJ went on to say:
“The impact of the public health emergency on the operation of the courts has been under constant review. 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.”
7. Although this confirms the repeated emphasis on moving to remote hearings “where possible”, the reference to many court hearing being “able to continue as normal with appropriate precautions being taken” raises a question whether the Courts are working on the basis that physical distancing within court rooms (perhaps with extended cleaning regimes in court) will be sufficient to allow in-person hearings to continue at present.
8. Today, Wednesday 18 March, the Bar Council has issued a new statement calling for “a suspension of all in-person hearings across all jurisdictions, save in exceptional circumstances where a video link or phone hearing cannot accommodate the interests of justice… Initially we suggest a 30 day suspension of all in-person civil, family and crime hearings, after which we should take stock.” It has also said:
a. That in making this call, the Bar Council, “considers that all proceedings conducted in person (but particularly jury trials) are inconsistent with the Government's current health advice.”
b. In terms of in-court conditions and hygiene, the Bar Council states:
“We appreciate the efforts the MoJ has made to address them, but we have serious concerns about standards of hygiene and facilities within court buildings, such as lack of soap, sanitising hand-gel and running water and the cleaning of conference and court rooms. We are also very concerned about the security checks that are necessary for safety but inadequate to mitigate the risk of infection being passed on.”
c. And in respect of video hearings:
“We have concerns about the capacity of video links to meet increased demand if they are used more extensively for evidence.”
9. No doubt, the Courts will need to respond to this further intervention by the Bar Council shortly.
10. There are signs that different Courts and Tribunals are going further than the LCJ has to date, and starting to work through in detail the practical issues which are likely to arise:
a. In the Family Division, Mostyn J has asked that given guidance to all Financial Remedies Court Judges that “Physical hearing should only take place where this is unavoidable.”
b. The Presidents of the Employment Tribunals for England and Wales and Scotland (in which forum a significant number of case management preliminary hearings are already held in private by virtue of rule 56 of the Employment Tribunals Rules of Procedure) have issued guidance on Wednesday 18 March which:
i. Emphasises the need for cooperation between parties.
ii. States that “during the pandemic Employment Judges and parties should start from the premise that a case management preliminary hearing should take place by telephone or other electronic means unless this would be contrary to the overriding objective.”
iii. Expresses doubt that many substantive issue preliminary hearings or final hearings will be able to take place by telephone or other electronic means consistent with the overriding objective but asking parties to take steps to consider where it may be possible to proceed remotely (for example, where the need for oral evidence can be limited by agreed statements of fact).
iv. Directing that in respect of legal arguments/submissions, “Judges and parties should start from the premise that normally, during the pandemic, it would be appropriate for written submissions to be used, with each party having the opportunity to comment on the submissions made by the other side.”
v. In respect of applications for postponement/adjournment applications and requests for extensions of time, “Employment Judges will expect parties to provide whatever evidence is available which shows or tends to show that the reason put forward for the application is a valid Covid-19 related one. Similarly, it will be of assistance to Employment Judges if those making postponement applications can set out any steps they have taken in an effort to avoid a postponement being necessary.”
c. The Solicitors Disciplinary Tribunal has announced that it will close from the end of this week’s hearings, with all substantive hearings due to take place between 23 March and 9 April 2020 adjourned.
11. What, then, are the issues which litigators should presently have in mind when considering forthcoming hearings and case management steps?
a. First, the current public health guidance on self-isolation may mean that any hearing is disrupted, including at very short notice. However, the Courts do not appear to be receptive, at present, to the idea that the risk of disruption, in and of itself, justifies adjournment. Factors which may nevertheless assist parties in achieving an adjournment without any specific Covid-19 factor include:
i. Where the adjournment is agreed by consent of the parties.
ii. Where the adjournment is sought not only because of the risk of disruption but because the parties have decided to enter into a form of ADR, to try to resolve the dispute outside of Court. If the Covid-19 outbreak has caused the balance of risks (including the risk of costs thrown away from late adjourned hearings) to change, then it may well be the case that parties decide to initiate or revisit settlement discussions. As a matter of general policy, the Courts are required to support attempts to settle disputes by alternative means (though where late adjournments are involved, they may be more reluctant to release listed hearing dates).
iii. Where the claim or issue to be determined is not time-critical (though Courts are likely to be concerned about creating a backlog of cases by adjourning cases on this ground alone).
iv. Where the proceedings require attendance from overseas or require significant travel within the United Kingdom (by parties, witnesses or experts).
b. Second, if there is a ‘Covid-19’ reason for seeking an adjournment or extension of time, again, consent of the other parties should be sought and:
i. Evidence should be assembled which shows or tends to show the ‘Covid-19 reason’.
ii. Consideration should be given to what measures could be taken to accommodate the ‘Covid-19 reason’. For example, if a witness is in self-isolation, could he give evidence by video link? Other cases may be more difficult to accommodate: for example, if a client is in self-isolation and it is not practicable to take instructions from her. Or if counsel has had to self-isolate and it is not practicable to conduct a trial by video link.
c. Third, the Courts will expect the parties to use a high degree of cooperation. It may be sensible to obtain standing instructions from clients to allow solicitors to manage rapidly developing case management situations. Parties who fail to adopt a sensible and cooperative attitude risk censure and costs orders. However, parties are entitled to interrogate whether adjournment is warranted (including the evidence for adjournment) and whether there are practicable measures may allow the hearing to proceed.
d. Fourth, the Courts may adopt spatial distancing in court rooms as a way of managing risk in the interim period. Parties should therefore consider how many attendees need to attend to court and whether the court room is large enough to allow for attendees to sit more than 2 metres apart. Requests may be made for larger court rooms to be allocated where needed.
This article was written by Tom Mountford.
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