08 April, 2020
We are currently navigating unchartered territories as practitioners grapple with the challenges of working from home and life under lockdown. It is inevitable that the way we conduct and defend insurance claims must change to adapt to the new situation we find ourselves in.
It is inescapable that parties will increasingly find it harder to comply with current directions, timetables and deadlines. Experts will struggle to report, there will be delays obtaining medical records, claims will be harder to investigate given the current parameters, and it will be difficult to interview witnesses with face to face meetings out of the question for the foreseeable future.
We hope that both claimant and defendant lawyers will adopt a more consensual approach to litigation and agree to reasonable requests for extensions. Since 2 April 2020, parties are now able to agree a longer extension of time up to 56 days, previously parties could only agree an extension of 28 days without the permission of the Court. Any extension of time, whether agreed by the parties or on application by a party, beyond 56 days will still require the permission of the court (unless the particular court has issued specific guidance). An application for such permission will be considered by the court on the papers. Any order made on the papers must, on application, be reconsidered at a hearing. This is intended as a temporary measure during the Coronavirus pandemic to ensure that the administration of justice is carried out so as not to endanger public health.
To date there has been no official word on whether there will be any extensions to the timescales for the MOJ portal/ Pre-Action protocol deadlines and timescales. At Forbes, we have been working with FOIL to call on the Lord Chief Justice to introduce emergency changes to extend or allow flexibility in the pre-action protocol and/or MoJ portal deadlines. In the meantime, 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). It has been agreed that:
It is acknowledged that face -to-face examinations will be difficult to arrange. In some cases, video conferencing for experts' examinations maybe 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.
It is inevitable that some appointments with experts will have to be postponed or rescheduled. Practitioners are encouraged to adopt a consensual approach to the impact this will have on case timetables.
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.
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.
Where the effects of Covid-19 means that limitation becomes an urgent issue, then it is agreed that the best practice is to:
The ABI has also 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. The signatories to the agreement can be found here. The following has been agreed:
Following a joint review it has been agreed that the protocol will continue until at least 20 May with a further joint review commencing on 13 May.
Conferences, meetings, hearings and trials are likely to be held remotely, by Skype, Zoom or BT Meetme from now on. A new protocol has been published to deal with remote hearings in England & Wales to assist with the operation of civil justice during the COVID-19 pandemic.
Success stories are already filtering through with the Law Gazette reporting on 31st March that the first trial ever to be conducted entirely by Skype proceeded 'almost without a hitch'.
There will be less emphasis on written correspondence as parties adopt email as the chosen method of communication. Many firms are now accepting service by email and there is a move to file all documentation at Court by email, including electronic bundles for trial.
For the first time the Court Funds Office (CFO) has changed its procedures to accept electronic documentation and payment by BACS.
Civil Court Listing priorities
With many Courts closed and staff either isolating or off sick the HMCTS has issued guidance to show how they intend to prioritise work in the County Courts. Notably, the Court is prioritising applications in cases listed for trial in the next three months or where there is a substantial hearing listed in the next month. Multi track hearings may be listed as a priority 1 matter if the parties agree that it is urgent, but the matter would be subject to triage by the Court.
Infant approvals, all small claim/fast track trials (where parties agree it is urgent), applications for interim payments and stage 3 assessment of damages are considered as priority 2 tasks i.e. 'work that could be done'.
A back log of work is going to be unavoidable which will be felt for some time to come.
Every day there are new announcements and we are endeavouring to keep you fully up to date via the FAQs page on our website to address the latest coronavirus concerns.
No-one knows how long this period of restriction owing to Coronavirus is going to last. However, it is possible that it will change the face of insurance litigation and how we approach it for a long time to come.