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Council Member’s Update

Peter Causton, Civil Litigation – April 2020

I very much hope that you are well and keeping safe during these unprecedented circumstances. As your Civil Litigation Council Member I am writing with an update.
Most solicitors are now working from home and we are having to adjust to the situation whereby we cannot see clients or travel to Court while trying to progress cases.

From 30 March the Courts are be putting in place a contingency plan dividing the court and tribunal estate into three categories:

(a) Courts that will remain open for all purposes, including hearings in which the judge and at least some of the participants are present, and to which the public and professions have physical access: open courts;

(b) Courts which will remain staffed and which judges can attend to deal with administrative matters and some remote hearings: staffed court;

(c) Courts which for the time being will not be staffed: suspended court.
Details of the priority Courts can be found here:

https://www.gov.uk/government/news/priority-courts-to-make-sure-justice-is-served

What are priority cases?

The Courts have published a list of cases which will still go ahead as priority cases:

CURRENT LISTING PRIORITIES IN CIVIL – COVID-19

Issued: 27.03.20

Priority 1: Work Which Must Be Done

1. Committals

2. Freezing Orders

3. Injunctions (and return days for ex parte injunctions).

4. The emphasis must be on those with a real time element (such as post-termination employment restrictions), noise or interference with property.

5. Anti-Social Behaviour/Harassment injunctions (not ancillary to possession)

6. Applications to stay enforcement of existing possession orders

7. Production of persons in custody following Power of Arrest detentions

8. Applications to displace under s 29 of MHA

9. Homelessness Applications

10. Enforcement work that does not involve bailiffs, such as third-party debt orders (particularly hardship payments).

11. Any applications in cases listed for trial in the next three months

12. Any applications where there is a substantial hearing listed in the next month.

13. All Multi Track hearings where parties agree that it is urgent (subject to triage).

14. Appeals in all these cases

Priority 2: Work Which Could Be Done

1. Infant and Protected Party approvals (children could attend by Skype)

2. CPR 21 approvals

3. Applications for interim payments in MT/PI/Clin Neg

4. Stage 3 assessment of damages

5. Trials involving the survival of a business or the solvency of an individual

6. Enforcement of trading contracts

7. Applications for summary judgement for a specified sum

8. Applications to set aside judgement in default

9. Applications for security for costs

10. All small claim/fast track trials where parties agree it is urgent (subject to triage)

11. Preliminary assessment of costs

12. Appeals in all these cases

Caveat

The work in the Court of Appeal and the QBD (and District Registries) are excluded from these lists, for obvious reasons.
B&PC work is also excluded from these lists. Thus far, it has not proved possible to deal with this work on anything other than a case-by-case basis. The triage system is working well. Accordingly, these lists relate only to County Court work.

The Rt. Hon. Lord Justice Coulson
Deputy Head of Civil Justice
27.02.20

How can we carry on progressing cases?

The Courts are rapidly adapting to deal with all cases by telephone or video conferencing. These systems were already being developed and it is likely that this will become the new normal once the crisis is over. Issues such as litigants in person recording hearings and privacy will probably fall by the wayside.

I recently dealt with hearings on the telephone and RTA stage 3 hearings. These were relatively straightforward. It is in everybody’s interests to keep cases moving and to deal with as many matters as possible by telephone or video conferencing.
Nonetheless there are still some cases which the Courts consider cannot be dealt with in this way such as fast track trials. There are many litigants who would not be able to take part, however, and in those cases they are likely to be adjourned.

There is talk about the rules committee being asked to sanction a general extension of time for 56 days to directions on all cases. I would suggest that the Courts should be much more understanding about applications for relief from sanction and to extending time for compliance with directions. It does seem to me that general extensions are now on the cards and likely to be granted en masse by a rule change.

The Lord Chief Justice issued guidance on 17 and 20 March that the presumption must be that all hearings are conducted remotely.

Coronavirus (COVID-19) update from the Lord Chief Justice

https://judiciaryni.uk/sites/judiciary/files/media-files/Covid-19%20-%20Guidance%20for%20all%20courts%20-%2020%20Mar%2020.pdf

“The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely”
It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months. For that reason, we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned.

I would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.

Again on 23 March the LCJ issued another note, saying in respect of civil courts:

REVIEW OF COURT ARRANGEMENTS: MESSAGE FROM THE LORD CHIEF JUSTICE

Guidance has already been given about the use of remote hearings. Hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety.

Guidance has been issued as to conducting remote hearings. It says that:

The current pandemic necessitates the use of remote hearings wherever possible. This Protocol applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts. It should be applied flexibly.

2. This Protocol seeks to provide basic guidance as to the conduct of remote hearings. Whilst most court buildings currently remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19.

https://www.civillitigationbrief.com/wp-content/uploads/2020/03/Civil-court-guidance-on-how-to-conduct-remote-hearings.pdf

A new practice direction concerning video hearings came in on 24 March 2020 dealing with the situation where a public access is not possible:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51y-video-or-audio-hearings-during-coronavirus-pandemic

In the light of the plan to close some Courts and to operate remotely, it may be very difficult to progress cases from now on.

What are the risks?

The risks are that if cases are not progressed, solicitors will lose income and clients will suffer. Given that there is also an economic crisis, solicitors are likely to want to keep working and parties are likely to want to get resolution as soon as possible. There is a real risk that justice delayed may result in the denial of justice, for example if the parties’ financial position deteriorates.

The rules on obeying Court orders and deadlines continue, although the Courts may be more forgiving when considering relief from sanctions applications.

Claim forms still need to be served and limitation periods adhered to. Solicitors may be exposed to professional negligence claims if deadlines are missed.

It is not currently suggested that limitation periods are suspended. Regarding rules for service it cannot make sense to serve documents by post or personally at this time. The Treasury Solicitor has asked for service by email.

Witness statements and documents can be signed electronically.

Clients can be contacted and dealt with in the usual way, just without physical meetings.

What is happening with Personal Injury Claims?

Medco has agreed that medical examinations for whiplash can take place remotely.
It remains to be seen whether the reforms to the low value personal injury system under the Civil Liabilities Act will go ahead in autumn 2020.

Pre action Protocol

The Association of British Insurer’s website carries details of a Protocol put in place to deal with the COVID-19 situation. There is a list of signatories on the site, that list also contains the “escalation email address” and hotline number of the signatories (which include insurers and claimant firms).

An immediate extension to the personal injury protocol has been developed to take effect from 24 March, for a minimum of 4 weeks, with a review to take place the week commencing 13 April.

https://www.abi.org.uk/products-and-issues/choosing-the-right-insurance/motor-insurance/coronavirus-protocol/

What about ADR?

I would suggest that as advised by the LCJ, it is worthwhile considering ADR/mediation during this time. Inevitably when the emergency is over, there is bound to be a backlog of cases and therefore trying to resolve cases now can bring about a quicker resolution of cases, which would be good for clients and firms alike. Many Mediation Providers offer online mediation using Zoom or Skype and online mediation or JSMs can be just as effective as meeting in person.

I have put together a guide to mediating online:

Mediate Online

I continue to be involved with the Judicial Liaison Committee on ADR implementing the CJC report.

What is happening about Possession Hearings?

All possession hearings are adjourned for 90 days under a new practice direction:

PRACTICE DIRECTION 51Z – STAY OF POSSESSION PROCEEDINGS – CORONAVIRUS

This Practice Direction supplements Part 51

1. This practice direction is made under rule 51.2 of the Civil Procedure Rules (“CPR”). It is intended to assess modifications to the rules and Practice Directions that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.

2. All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force.

3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2.

Guideline Hourly Rates

The Guideline Hourly rates Committee has been reformed and I continue to represent Defendant solicitors on the Committee given my background as a defendant insurance lawyer and previous involvement. Please get in touch if you are a defendant solicitor and have any particular points you would like me to raise. The committee is unlikely to take this forward until after the health emergency situation has been resolved.

Statements of Truth

New rules regarding statements of truth come in from 6 April – easily missed when everyone is focusing on the coronavirus.

Here is a link to a useful article about the new requirements:

https://www.no5.com/media/news/new-rules-regarding-statements-of-truth-in-civil-proceedings/

What is the Law Society Doing for Members?

As your Council Member I continue to press for litigation solicitors to be considered to be key workers and to keeping the Courts safe and rescheduling all hearings as telephone or video conference hearings.

Our immediate response

Our immediate priorities are:

looking after our members’ safety -  from calling for protections in courts to pushing for changes to rules which prevent solicitors from working remotely

helping members keep their businesses

going -from lobbying government for support for our members to tips on remote working

helping members stay compliant – lobbying regulators to issue guidance on the issues our members are facing

protecting the rule of law – scrutinising and commenting on the emergency legislation.

We have made progress on the following issues in recent days. We have:

Influenced safety policies introduced in courts, police stations and prisons, and raised concerns where these are not being implemented in practice

Worked with the SRA on the regulatory side of the crisis

Influenced the Legal Aid Agency’s Covid-19 policies and procedures, and made it clear where more change is needed

Ensured that the government’s business support package is developed with regard to the issues affecting our members

Ensured that the government’s definition of key workers include those “essential to the running of the justice system”, including solicitor advocates, duty solicitors and other similar categories. Read the full list.

Ensured government understood the need for a sunset clause in relation to its emergency legislation

Ensured police guidance has been updated to reflect our concerns about hygiene and member safety

Influenced the Welsh government to include small-to-medium law firms within the criteria for its recently announced £100 million grant scheme for businesses

We spend time on a daily basis with HMCTS, MOJ, BEIS, LAA, SRA and others on your behalf and that of the public. We will keep you posted with further developments.

We have developed a new Coronavirus online hub made up of the following:

https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak

Frequently asked questions to support litigators, transactional lawyers and practice managers

Latest insight and government resources, including, for example, the SRA guidance on regulatory compliance

Our influencing work, including an overview of our recent engagement with the Ministry of Justice, Legal Aid Agency and the Department for Business, Enterprise and Industrial Strategy

Support services for members, particularly on health and wellbeing.
Useful links:

https://communities.lawsociety.org.uk/civil-litigation/

Homepage

https://www.linklaters.com/en/insights/publications/2020/march/covid-19-practical-guidance-on-significant-commercial-and-legal-issues

Mediate Online

www.foil.org
www.apil.org
https://www.civillitigationbrief.com/page/2/

COVID-19 pressure points: Will this be a valid basis for avoiding contractual obligations?

https://www.civillitigationbrief.com/wp-content/uploads/2020/03/Civil-court-guidance-on-how-to-conduct-remote-hearings.pdf

USEFUL LINKS: SUPPORT FOR BUSINESSES DURING THE CORONAVIRUS CRISIS

COVID-19: The evolving picture for remote hearings in the English courts

Anyway, please keep safe and well and I will continue to work in your interests as

Law Society Council Member.

This newsletter reflects the views of the individual Council member and does not necessarily reflect the views of the Law Society.

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