COVID-19 and the English Courts - practical implications to consider

The impact of the COVID-19 pandemic has forced governments to implement unprecedented measures and required industries to adapt to events that change on a daily basis. Whilst we were drafting this alert, the UK Government steered the Coronavirus Bill through Parliament. Powers under the Coronavirus Act 2020, which received Royal Assent on 25 March 2020, include shutting down premises, requiring people not categorised as ‘critical workers’ to stay at home and the potential closure of UK borders. These measures would have been all but unthinkable even a month ago.

In these extraordinary times, institutions and industries are trying to continue operating as far as they are able – including courts and tribunals in the different jurisdictions affected.
Amidst the uncertainty caused by the pandemic, parties need to understand the practical implications it may have on their claims and potential claims, particularly if a limitation period is about to expire or a hearing is coming up.

This alert provides a brief overview of the approach which the Courts in England and Wales have taken to date, what they might do going forward and what measures parties may wish to take in the short term.

Approach of the Courts to date

As the shut-down necessitated by the pandemic continues, the Courts in England and Wales (a collective/shorthand term in which we include the Lord Chief Justice, the senior judiciary, and HM Courts and Tribunal Service ("HMCTS")) have demonstrated their resilience and efficiency.

The Lord Chief Justice announced over a week ago that the default position should be that hearings should be conducted with one, more than one, or all participants attending remotely. It seems that, wherever possible, hearings of all kinds, including trials, have been taking place as scheduled via audio or video link. We understand that the HMCTS is working to increase capacity so as to keep the courts running.

The Courts are moving towards operating all hearings remotely and have issued a Remote Hearings Protocol (the "Protocol") covering the County Court, the High Court (including the Business and Property Courts), and the Court of Appeal (Civil Division). This calls on the court, parties to litigation and their representatives to be more proactive in relation to forthcoming hearings. It states that Judges will propose one of three solutions: a stated remote communication method for the hearing; that the case will proceed in court with appropriate precautions; or that the case will need to be adjourned because a remote hearing is not possible and the length of the hearing, combined with the number of parties, overseas parties, representatives and/or witnesses make it undesirable to go ahead at the current time. Parties will need to familiarise themselves with the Protocol and, if a remote hearing is ordered, adapt their preparations accordingly.

The Protocol also provides that remote hearings should, so far as possible, still be public hearings. It is a testament to the quality of our senior judiciary that the principles of open justice were placed front and centre of a Protocol drafted at such short notice. They are also reflected in a new Civil Procedure Rules ("CPR") Practice Direction (PD 51Y), which allows the Courts to order that, where it is not practicable for wholly audio or video proceedings to be broadcast in a court building, they must take place in private. If a media representative is able to attend remotely, proceedings will remain "public" and, in any event, private hearings will be recorded.

Courts have a duty under the CPR to deal with cases expeditiously and allocate resources fairly. Given the guidance set out in the Protocol and therefore the shift towards virtual meetings and hearings, it seems unlikely at this stage that significant adjournments or stays to proceedings will be ordered unless absolutely necessary.
Indeed whilst most of the Court staff – from counter clerks to Judges – are working from home, court managers are continuing to deal with documents being filed on the Court system electronically. The operations manager for the Rolls Building (which houses the business, property and commercial capability of the High Court, being the Chancery Division, the Commercial Court, the Admiralty Court and the Technology and Construction Court) has issued a direction that e-filings will not be rejected during this period due to the COVID-19 outbreak.

Uncertainty going forward

Despite the Protocol and practical steps that the Courts in England and Wales have taken, the position remains uncertain both with regard to what will happen (a) if the availability of Court staff and judges is reduced such that normal business is not possible and (b) with regard to future Court proceedings which have not yet (or have only recently) been issued. We cannot yet predict whether subsequent procedural steps will be delayed or how practical it will be to carry out important tasks, such as early disclosure under the CPR Disclosure Pilot.

Given those uncertainties, one option is for existing Court deadlines and limitation for issuing proceedings to be extended by a specific period. The Law Society has stated that it is liaising closely with the Courts in England and Wales to assess whether such extensions ought to be implemented.

Practical considerations

Until there is definitive confirmation from the Courts, parties should work on the basis that their case will proceed in accordance with existing Court rules.

Any potential claimant must always pay close attention to the limitation period of any claim. If a limitation period is likely to expire in the short to medium-term, a potential claimant seeking to protect its position could try to enter into a (or extend a current) standstill agreement with the potential defendant. If that is not possible in the circumstances, then it will be crucial to issue a Claim Form before the expiry of the relevant limitation period. After issue, a claimant has four months in which to serve the Claim, which gives a little more time to decide whether to set the court process running or to let the claim lapse.

As regards existing court deadlines on current claims, parties should likewise proceed in accordance with existing Court rules, recognising that they have a duty under the CPR to help the Court further the overriding objective, namely to deal with cases justly and at a proportionate cost (including that claims are dealt with expeditiously and fairly). This was underscored in the recent judgment in McParland and Partners v Stuart Whitehead [2020] EWHC 298 (Ch), in which the Chancellor of the High Court took the opportunity to remind parties that they should cooperate and not use procedural steps under the Disclosure Pilot to try to gain a litigation advantage. We have analysed this judgment in more detail in a previous Mayer Brown alert – The Chancellor’s fresh guidance on the Disclosure Pilot.

In the current circumstances, parties will have to consider using technology where possible to satisfy their duty to help the Court further the overriding objective. For example, where a claim is subject to the Disclosure Pilot, should disclosure – including initial disclosure – be performed entirely electronically (to the extent this is not already the case); or can hearings be set up/managed where all participants attend via video conference? Conducting cases whilst all participants are working from home will require all the parties to cooperate more than ever before, to ensure that procedural and practical hurdles can be overcome.

Conclusion

The Courts in England and Wales have adapted quickly to the COVID-19 pandemic and are keen to ensure that justice continues to be served as efficiently and expeditiously as possible. However, further obstacles could arise in the coming days and weeks, and further practical limitations may be imposed on society.

Given that we cannot know with any certainty to what extent COVID-19 will impact upon the Court’s ability to deal with cases and the steps which may subsequently be implemented (such as potentially extending Court and limitation deadlines), parties should err on the side of caution. As a minimum, they should seek to familiarise themselves with videoconferencing software as the Court accelerates the adoption of these and other technical solutions.

If there are any limitation periods which are about to expire, parties should either seek to enter into a standstill agreement with the parties against which it is seeking to make a claim or, failing that, consider issuing protective proceedings.

Circumstances change on a daily basis, but the Courts in England and Wales are clearly doing what they can to maintain the administration of justice. Further guidance and/or changes to the CPR are bound to follow.