COVID-19: Impact on civil litigation in England and Wales

With the effects of the COVID-19 outbreak continuing to take hold on nearly all aspects of day-to-day life, what does this mean for the continued operation of the judicial system, and more specifically any court proceedings that businesses may be involved in or contemplating?

Where proceedings are already on foot, businesses may have dates fixed for upcoming hearings and will be eager to know, for example, whether and how these are likely to proceed, how key participants (witnesses, experts, counsel and even judges themselves) will be able to take part, and in what format hearing bundles are expected to be prepared. Where there is no trial or other hearing imminent, parties may still want to know what impact there will be on the day-to-day running of the case, including the implications for deadlines.

One impact of the current uncertainty is that many businesses and their counterparties are exploring their options and rights in relation to their contractual arrangements, and may be looking to trigger force majeure or MAC clauses, or may be at risk of imminent default. They will therefore be particularly concerned as to the impact of any closure of court offices or delay to court business, including on their ability to seek urgent relief. Access to the courts is likewise critical for those businesses experiencing acute financial distress and contemplating some kind of insolvency procedure.

We are in the early days of this crisis and events are moving very quickly – in relation to court procedures as in many other areas. We are closely monitoring communications coming from the judiciary and the court service, which are evolving as the situation develops. The Lord Chief Justice yesterday sent a message to judges in the Civil and Family Courts which gives a clear indication of the judiciary’s current approach, including their commitment to continuing the work of the courts as a vital public service. Key points from the Lord Chief Justice’s message include:

• The default position now must be that hearings should be conducted with some or all participants attending remotely, where that is possible. Court rules are flexible enough to enable telephone and video hearings of “almost everything”, and any legal impediments will be dealt with.
• The courts service is working urgently on expanding the availability of technology, but in the meantime the courts will make use of phones, video facilities and Skype. Many more procedural matters may be resolved on paper within the rules.
• The courts will have to use technology to conduct business which even a month ago would have been “unthinkable”, including final hearings and hearings with contested evidence, as otherwise “there will be no hearings and access to justice will become a mirage”.
• If too much court business is adjourned there will be inevitable backlogs and delays which will build to an intolerable level. Judges are urged, before agreeing to adjourn any hearing, to use available time to explore with the parties the possibility for compromise.
• However, it may be difficult to maintain trials and final hearings in the short term, not least because of the inability of people to participate. As events develop, individual decisions on priorities and practicalities will have to be made. The message is to do what can be done safely.
• Some types of application are likely to be urgent and may be unsuitable for telephone hearing (such as applications relating to injunctions and committal). Arrangements will be needed to hear them safely.

Following on from the Lord Chief Justice’s message, we are aware of a number of cases in which arrangements are being made for trials or other hearings to be conducted by telephone or video. So the judiciary is clearly on board with this necessary change of approach. The courts service has published new guidance on telephone and video hearings to facilitate this change, and the Business and Property Courts have also prepared a protocol regarding remote hearings. (Update 23 March 2020: That has been superseded by a new protocol regarding remote hearings which is not limited to the Business and Property Courts but applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved, in the County Court, High Court and Court of Appeal (Civil Division). It is similar, however, to the version introduced last week for the Business and Property Courts. Note also this information published on 18 March relating to Queen's Bench Masters hearings.)

It seems that the courts are also showing increased flexibility regarding court deadlines, in light of potential difficulties arising from the Covid-19 outbreak. One counsel’s chambers has published an update regarding what they refer to as the first “Covid-19 Direction”. In that case, the court granted an order doubling the period for which the parties can agree extensions to procedural deadlines without further order from the court (to 56 days, up from 28 days under CPR 3.8(4)).

As for court filings, a number of court counters have been closed, but most documents are filed using the online CE-file system in any event so physical attendance at court is not ordinarily necessary. Court users are being told to expect delays in the CE-file system due to a reduced workforce, but that should not affect limitation issues as claim forms are issued as at the date they are received onto the system. It seems increased flexibility is also being introduced for court bundles to be lodged electronically where it is not possible to lodge in hard copy.

The government also yesterday published its Coronavirus Bill which includes measures to allow video and audio hearings to be broadcast to the public, in the interests of continuing to promote the important principle of open justice. It also includes provisions allowing the court to direct that such proceedings be recorded, and banning the unauthorised (video or audio) recording or transmission of such proceedings.

For more information on the legal issues arising from COVID-19 and the impact on businesses globally, see our hub page: Navigating the COVID-19 outbreak.