Changes to litigation procedures under Covid-19

The courts, a vital public service, have continued to operate during the Covid-19 pandemic. Unless very good reason to the contrary can be demonstrated, active cases will generally proceed at every stage in litigation. The following article will provide an overview of the current process of court hearings, the longer-term implications and the approach to hearings and litigation.

Remote Hearings

Before the Covid-19 pandemic, the courts have been able to hold hearings remotely, including by video conference. However, remote hearings were seldom conducted for substantive hearings and trials, despite their potential to offer real benefit. The Protocol Regarding Remote Hearings issued on 26 March 2020 anticipated that it would normally be possible for all short, interlocutory, or non-witness applications to be heard remotely. In practice, it is becoming increasingly apparent that some substantive hearings will also be heard remotely as certain restrictions continue.

Some hearings with live evidence will not be suitable for a remote hearing, particularly where there is a large amount of documentary evidence to be cross-examined on or there is a challenge to the creditability of a witness. In a legacy context, in the absence of compelling supporting evidence, it would be particularly difficult to prove a Will forgery or undue influence via video link as the judge would not be able to assess a witness to the same extent.

The High Court

The High Court has been holding the vast majority of its cases by telephone or by Skype for Business (with an apparent preference for the latter). The work in the High Court is being divided into “urgent business” (i.e. “business that would warrant an out of hours application”) and “business as usual” (i.e. everything else). “Urgent business” is being prioritised, although “business as usual” will continue to be dealt with to the extent possible in light of the resources available. The default position is that remote hearings should still be public hearings, in other words, hearings to which the public has access. That is primarily to be achieved by making provision for media representatives to join the conference call.

County Courts

The County Courts have generally re-listed hearings as telephone hearings. There is a non-exhaustive list of the matters generally suitable for re-listing as telephone hearings. Hearings with disputed live evidence are said not to be suitable with certain categories of litigants in person (LIP), for example, those “known or suspected to have significant mental health issues, etc.…”, but otherwise hearings with LIPs can be re-listed as telephone hearings.

Court of Protection

The Court of Protection’s default position, until further direction, is that hearings will be remote. The Court of Protection will only arrange hearings which require people to attend if there is a genuine urgency and it is not possible to conduct a remote hearing. The position was demonstrated by a recent, fully remote trial, a three-day case concerning end-of-life care which was conducted over Skype for Business. The trial involved five parties, evidence was heard from eleven witnesses and three experts also attending remotely, along with two journalists from the Press Association. The judge presided from home and some of the witnesses gave their evidence from a GP's surgery because the internet connection there was more reliable than at the care home from which they would have given evidence.

Extensions of time under the Civil Procedural Rules

Although many cases are proceeding as normal it will often take parties and their legal representatives longer to draft documents and/or provide instructions. In view of these difficulties, on 2 April 2020, Practice Direction 51ZA was added to the Civil Procedure Rules (CPR) with immediate effect. Where a rule, practice direction or court order requires a party to do something within a specified time, the parties may agree an extension of that time limit. PD 51ZA Paragraph 2 provides for an extension to the maximum time that may be agreed, from 28 days to 56 days. Any extension of time beyond 56 days (either by agreement or on application to the court) requires the permission of the court. Parties should not forget, however, that they will need to demonstrate why the Covid-19 crisis has meant that they require more time and that any extension of time does not put at risk any hearing date.

Alternative Dispute Resolution

The use of Alternative Dispute Resolution (ADR), and in particular mediation/without prejudice meetings, is often useful in legacy disputes where one or more parties have entrenched views. Whilst it is not currently possible to hold mediations/without prejudice meetings in person, it is possible to do so remotely. There are challenges with this, for example individuals are not in the same room as their legal representatives, but it can be a valuable mechanism for exploring settlement at a time when many people have become more comfortable with online meetings. It also enables individuals who might not have considered attending a mediation/without prejudice meeting in person (because they are vulnerable, reside abroad, etc.…) to do so.  Furthermore, it will be some time before parties are allowed, and even longer before some parties are comfortable, to attend a mediation/without prejudice meeting in person. Remote mediations/without prejudice meetings may be the best option available as the alternative to a contested hearing or trial.

Conclusion

The conduct of court hearings has, in some respects, changed significantly over a short period of time. It is inevitable that further changes will follow but it will be particularly interesting to see whether the judiciary’s, parties’ and their legal representatives’ approach towards hearings, and litigation on the whole, will change in the long run in light of the Covid-19 pandemic. For the time being, it is important to follow the courts’ guidance and to draw upon the experience and expertise of legal representatives regarding the best options available to a charity in each specific case.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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