02 April, 2020
FOIL and APIL have agreed a set of best practices for their members to consider and adopt during the coronavirus outbreak.
Full details can be found here, but in summary the following matters have been agreed:
Practitioners should engage by telephone and/or email with a view to resolving disputes effectively and efficiently.
Service by email, including new proceedings
Firms should temporarily agree to accept service by email.
It is acknowledged that face-to-face examinations will be difficult to arrange. In some cases, video conferencing for experts examinations may be possible. Medco has agreed the current ban on the use of remote examinations will be lifted. There are however several conditions, and other factors, which users will need to consider before making any arrangements with claimants for a remote examination.
Inevitably some appointments with experts will have to be postponed or rescheduled. Practitioners should try to adopt a consensual approach to the impact this will have on case timetables.
Exchange of evidence
Parties should try to agree to the exchange of witness evidence and expert evidence by email.
Extensions of time
It is likely that both parties will face challenges complying with existing court directions and timetables and a consensual approach should be taken when responding to requests for extensions. There is case law to support extensions of up to 56 days. In the matter of O`Driscoll v FIVE Bianchi S.p.A the court allowed the claimant's request for permission for the parties to agree extensions of time for up to 56 days by consent without further order from the court, displacing the normal rule that parties can only agree up to 28-day extensions of time.
HMCTS has issued guidance on the wider use of remote hearings, by telephone or Skype. It is recommended that parties adopt this guidance.
Some adjournments will be required due to non-availability of clients, witnesses or experts. It is recommended that parties take a consensual approach should it be necessary to seek an adjournment of either an interlocutory hearing or trial.
Parties ought to adopt a reasonable approach to requests for interim payments. In the current climate, it is noted that interim payments are likely to be of increased importance, and any unnecessary applications to the court ought to be avoided.
It is recommended that where possible parties exchange their costs budgets. Every court will deal with CCMCs differently and if they do proceed, they will be held remotely usually by telephone hearing. Depending upon client instructions, the parties should consider whether the budgeting aspect of the CCMC hearing should be adjourned. However, the parties should seek to agree directions generally where possible without the need for a hearing. If the parties are unable to agree directions, the hearing should go ahead as scheduled.
Where the effects of Covid-19 means that limitation becomes an urgent issue, then best practice is to:
The overwhelming message in the best practice guidance is that parties should take a "consensual" approach. This is not the time for aggressive litigation, obstructive behaviour or taking advantage of the current situation. In a time of uncertainty, it is encouraging that FOIL and APIL have come together to produce this pragmatic best practice guidance which will hopefully allow practitioners to get through this difficult unprecedented period.