Covid-19 Response - An Update

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27 March, 2020

As the country goes into lockdown, we are still waiting for formal guidance on how civil practitioners should proceed. These are without a doubt unprecedented times, so it comes as no surprise that we have experienced an inconsistent approach by the Courts. This week a Judge refused to do a full list of Stage 3 hearings, yet on Friday a District Judge declined to adjourn a trial even though the Claimant was displaying symptoms as everyone would be 5 metres apart in the Courtroom.

In the County Court of North and West Yorkshire and in the District Registry of the Queen's Bench Division in Leeds HHJ Gosnell has helpfully issued a Listing Protocol covering procedure.

HHJ Gosnell confirms that when a hearing is fixed or approaching there will be three options:

  • A remote hearing by a specified communication method (BT conferencing, BT MeetMe, Skype or Zoom).
  • A Face to Face hearing proceeding in court with appropriate precautions (with social distancing throughout in a sufficiently large court room to ensure this).
  • The hearing will have to be adjourned because neither of the previous two options are practicable.

It is likely that the parties will be notified which option the Judge dealing with the case has chosen but given the opportunity to email with any reasoned objections which can then be dealt with by the Judge on paper only without a hearing.

Small Claims Track hearings:

HHJ Gosnell comments that these are challenging for two reasons; firstly, they often involve litigants in person who may have difficulty with remote hearings; secondly, they are commonly block-listed so it would be impossible to list them all at the same time remotely. He has therefore decided to vacate and relist the block list small claims hearings for the next four weeks to provide some breathing space to rearrange future lists.

After the four-week period litigants will receive a letter in which they will be given the option to choose between:

  • Asking the Judge to determine the claim on paper and without attendance pursuant to CPR 27.9.
  • Having the hearing take place remotely using one of the approved methods.
  • Having their hearing adjourned until it is safe to have a face to face hearing.

HHJ Gosnell has declined to give parties in small claims hearings the option of a face to face hearing until it is medically safe to do so given the risks to participants, staff and judiciary. The final decision on whether to list the claim for a remote hearing will be made by a District Judge.

Fast track and Multi track trials, Injunctions and Committals

In each case the parties will be contacted, and the three options outlined above will offered to them. HHJ Gosnell does not anticipate that there will be many parties opting for the remote hearing option but notes it may be suitable in cases where witness evidence is not really disputed, and it is more a matter construction of documents.

If a face to face trial is to take place, then a Judge will assess whether we are confident a hearing can be conducted safely. This will depend on how long the hearing is likely to last and how many participants are likely to be in the courtroom.

Appeals

Applications for permission to appeal will continue to be dealt with on paper. Any oral renewals will be dealt with by remote hearing. This will also apply to litigants in person who will either take part in a BT MeetMe call or alternatively be telephoned by court staff and put through to the Judge who will conduct a telephone hearing.

Contested appeals unless very complex will be done remotely. If not capable of being done remotely they will probably be adjourned until a face to face hearing is safe.

CCMC's and chambers lists

All interim applications including applications to set aside judgment, relief from sanctions and extensions of time will dealt with by remote hearing.

Stage 3 hearings and disposals

These shall be done by remote hearings, preferably Skype to reduce the pressure on phone lines. Guidance may need to be given about the electronic filing of bundles

Infant and Protected Party approvals

These will be done by remote hearings from now on or possibly even on paper without the need for a telephone hearing.

In the North East, HHJ Freedman the DCJ for the North East Circuit (Northumbria and Durham) has also issued guidance:

Small Claims & Fast Tracks

All Small Claims & Fast Tracks listed in Northumbria and Durham between now and 9th April 2020 are vacated from the list.

Small Claims & Fast Tracks listed from 14th April 2020 onwards will be kept under review; and parties will be notified during the week beginning 6th April 2020 whether it is practicable for the trials to proceed.

Short Hearings

All 'Short hearings' (including Stage 3 Hearings and Approvals in P.I.cases), other than Trials, will be conducted by telephone or other remote means for the foreseeable future (to be kept under review).

Multi Tracks

The parties are at liberty to extend, by consent, any step in the timetable up to a maximum of 90 days (as opposed to the present limit of 28 days).

If the extension of time, as agreed by the parties does not adversely affect the Trial date, the court does not need to be notified.

Forbes comment

The DCJ in Manchester has confirmed that all face-to-face hearings due to take place up to and including Tuesday 31 March 2020 have been adjourned.

We expect other courts will be issuing similar guidance shortly.

It is also worth noting that the above is guidance and court and Judges may depart from it with good reason.

At Forbes, we have been working with FOIL to call on the Lord Chief Justice to introduce emergency changes to the following:

  • a temporary change to the CPR allowing agreed extensions of time of up to 56 days (from the current 28);
  • extension to, or flexibility in, pre-action protocol and/or MoJ portal deadlines;
  • better communication from the courts;
  • an extension of telephone hearings; and
  • a statement of policy that parties and their representatives are expected to behave sensibly in the current crisis and that the courts will take a dim view of behaviour that seeks to abuse the situation.

A joint letter on behalf of FOIL, APIL, SCIL and MASS has been sent to the Lord Chief Justice and we await a response.

The ABI has published an agreed protocol "Extension to the Personal Injury Protocol in England and Wales" to freeze limitation and to require claimants to respond constructively to defendant requests for more time to serve a defence. It allows parties to agree a 4-week extension (until the 20th of April) with a joint review in the week commencing the 13th of April. The following has been agreed:

  • An agreement that all limitation dates in all personal injury cases are frozen and claimants undertake to respond constructively to defendant requests for extension of time to serve a Defence;
  • An escalation process whereby any issue arising by a party's failure to act in accordance with the agreement in 1. above and which cannot immediately be resolved between the parties is referred to an email and/or telephone 'hotline' specifically established for this situation; and
  • A commitment that the email and telephone hotline will be monitored regularly and referred to senior people within the respective organisations who will be able to make a swift decision as to whether the stance being taken should be adjusted in light of prevailing circumstances.

A full list of those that have signed up to the protocol can be found here www.abi.org.uk/products-and-issues/choosing-the-right-insurance/motor-insurance/coronavirus-protocol/.

Unfortunately, the protocol does not address any of the issues raised with the Lord Chief Justice. The pressing issue for most litigators is the inability to investigate claims and respond within the portal timescales as well as complying with directions generally. We anticipate that the protocol is likely to be a short term solution for those that have signed up to it while further guidance is waited from the government.

During this difficult time, parties will need to co-operate and work together. It is inevitable that parties on both sides will need to be flexible and extensions will have to be agreed where deadlines cannot realistically be met.

We will endeavour to keep you fully updated on developments as and when they arise.

Source: www.civillitigationbrief.com/2020/03/23/listing-protocol-for-civil-courts-north-and-west-yorkshire-and-leeds-district-registry/. We are grateful to Gordon Exall for publishing the Listing Protocol on his website.

Please note the information contained in this article is correct at the original date of publication.

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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