Keeping the cogs of justice turning in the face of the pandemic

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Dispute Resolution Article

13 May, 2020

Recent Judicial Guidance and decisions from the Courts have made it clear that the cogs of justice are to continue turning and that hearings and trials are to continue wherever possible. This article will look at::

  • Judicial Guidance;
  • Legislation; and
  • How this is working in practice.

It is apparent that the Courts have reacted differently, part due to available technology and partly due to resource. The question is what can we do to ensure that the rule of law is upheld in the face of this pandemic.

Judicial Guidance

On 19 March 2020 the Lord Chief Justice gave a message to Judges in the Civil Courts which was clear that "we have an obligation to continue with the work of the courts as a vital public service:.

"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."

This was followed by the release of the Civil Justice in England and Wales Protocol Regarding Remote Hearings on 20 March 2020. A clear indication that the Courts intended to adapt, using technology readily available to facilitate remote hearings and the resolution of claims.

Legislation

The legislative in enacting Sections 53-56 and Schedule 25 of the Coronavirus Act 2020 have given a "strong indication that the legislative intends work of the Civil Courts to continue with the aid of greater use of video and audio";

Further, the exceptions to the restriction of movement contained within the Health Protection (Corona Virus Restrictions) (England) Regulations 2020 that you are able to leave the home to "fulfil a legal obligation including attending Court or to participate in legal proceedings" are again a message from the legislative that the Courts ought to continue to function so far as they are able to do so safely;

How is this playing out in practice?

It is one thing to read the guidance and the legislation but we too need to consider the differing approaches taken by the Courts and how this is being implemented in practice.

The High Court has recently ordered in Re One Blackfriars Ltd, Hyde v. Nygate: [2020] EWHC 845 (Ch) that a 5-week trial of a claim for damages of £250m, with 9,000 documents, 4 witnesses of fact and 13 experts was not to be adjourned, but to take place remotely.

John Kimbell QC presiding, stated that "the use of video technology and electronic document handling software is precisely what both the Coronavirus Regulations themselves and the guidance issued by the Lord Chief Justice had in mind". He went on to place great emphasis and importance on the role of the parties in agreeing methods of facilitating a remote trial.

Further, in the recently unreported case of National Bank of Kazakhstan v Mellon, the High Court ordered that the trial (involving a number of parties in various countries, valued at $530 million and set to take 7 days) will take place electronically.

The Technology and Construction Court is adopting a similar stance and trials are not being routinely avoided. Rather, whilst appreciating the difficulties, technology particularly Skype for Business is being utilised to hear trials remotely. Including a 6-week trial due to take place remotely in June.

A similar approach is being taken across the tribunals with video/audio hearings taking place over Skype and Microsoft Teams. With other possible technologies being tested and implemented by HMCTS including remote hearing rooms.

In contrast the County Courts have shifted the emphasis to the parties to agree that remote trials and hearings are appropriate. This is partly informed by the Civil Court Listing Priorities dated 24 April 2020 which outlines the work that must be done:

  • applications to stay existing enforcement proceedings.
  • applications in matters lists for trial in the next three months.
  • applications in matters in which a substantial hearing is listed in the next month.
  • multi-track hearings where the parties agree that it is urgent.

It also outlines work that could be done:

  • infant approvals by Skype.
  • applications for interim payments.
  • Stage 3 MOJ hearings.
  • applications to set aside default judgments.
  • preliminary assessments of costs.
  • small claims and fast track trials where the parties agree that it is urgent.

We have seen that the County Courts across Cumbria and Lancashire have directed that all fast track and multi-track trials to listed prior to 31 July 2020 to be adjourned unless the parties agree within 5 days that the trial can proceed remotely. We are seeing similar approaches across other County Courts with Manchester County Court issuing guidance that face to face hearings to be adjourned with CCMCs, PTRs and all other hearings to be held remotely, including trials if all parties consent.

What does this mean?

In these uncertain times, the emphasis is on parties being encouraged to work together to agree alternative ways in which a case can be heard. It may not be the norm to have hearings or trials remotely but the technology is available to ensure that we can continue to deliver justice and importantly the technology is (1) being used and (2) being used successfully.

We need to continue to prepare to ensure that we meet Court deadlines - the message is clear that we are to continue as if the trial / hearing is going ahead as planned. We now have the ability to agree to extend deadlines by up to 56 days as opposed to the usual 28 if required due to the current circumstances and the onus is on the parties to reasonably agree to such extensions. But COVID-19 is not to be an excuse and steps are to be taken to ensure that cases progress expeditiously.

All parties are reminded of the overriding objective of the CPR "to enable the court to deal with cases justly and at proportionate costs" and "ensuring that it is dealt with expeditiously and fairly." That is the focus for the Courts when considering to adjourn trials or proceed remotely and that too should be our main focus.

Our tips for remote trials

There are specific considerations for remote trials and the importance of ensuring that you are prepared cannot be underestimated. Our four tips for remote trials or considerations when agreeing to attend a remote trial include:

  1. Wi-Fi - is your home broadband of a suitable quality so that your video and microphone will be able to be used without interference;
  2. The trial bundle - we need to ensure that the electronic trial bundle only contains necessary documentation crucial for the trial to proceed. It needs to be clearly labelled with the bundle easy to navigate. Does the party preparing the bundle have the appropriate technology?
  3. Briefing counsel is likely to come earlier with detailed skeletons becoming the norm for submissions; and
  4. Testing - it is a good idea to have a run through using the bundle and technology ahead of the trial.

For more information contact Lucy Bailey in our Dispute Resolution department via email or phone on 0333 207 0677. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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