How the pandemic has changed civil litigation for the better

In April 2020, we looked at how the civil justice system were adapting during the first national lockdown.  Nearly a year on, many of those changes have become commonplace.  Whilst there have been ample temporary restrictions and moratoriums put in place during the Covid-19 pandemic which have been somewhat frustrating for parties currently and/or wishing to pursue or defend civil law proceedings, the explosion in the number of telephone and video hearings, fully remote trials, and the substantial increase in alternative dispute resolution (ADR) has resulted in positive changes which may in fact surpass the pandemic and permanently alter civil litigation processes in England and Wales. Below, we set out some of these main changes and comment on what this could mean in the future.

Remote Hearings

Remote case management/interim hearings have very much become the norm.  However, judges have also been increasingly willing to conduct civil litigation trials entirely virtually (even in circumstances where a party objects).

A detailed explanation was given on the issue of remote hearings (whether that be for an interim application or civil trials) in the case of Municipo de Mariana & Others v BHP Group PL [2020] EWHC 928 (TCC), where the Court noted the following:

• the importance of the continued administration of justice is paramount. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances;
• many disputes can be resolved fairly by way of remote hearing and courts must be prepared to adopt this format in circumstances where such a move would have been inconceivable only a short time ago;
• there should be a rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved; and
• whether there can be a fair resolution by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether, and if so to what extent, live evidence and cross-examination will be necessary is likely to be important in many cases.

There will of course be instances where the court will be satisfied that fair resolution cannot be achieved by way of a remote hearing. However, in light of what we have seen in 2020, it has been relatively rare for the court to delay the progression of a case and parties to the case have largely responded positively on the virtual nature of proceedings.

A by-product of the virtual hearing is the electronic bundle.  Rows of lever arch files (which are costly both to prepare and the environment) have been replaced by searchable/paginated PDF files.  All lawyers will have been involved in a hearing that was delayed because the court's bundles have gone missing or are in the wrong building.  The e-bundle has solved that problem.

ADR

According to the Commercial Court Users Group, in the year to date “settlements have been high. Normally there is a 60-65% settlement rate. In the year to date it is closer to 75%.” Whilst the Civil Procedure Rules require parties to actively consider ARR, this obligation to the court sometimes was overlooked in a civil litigation case, especially where there was a high level of animosity between the parties.

Interestingly, the increased desire to settle disputes through negotiating settlement offers, mediation and other available mechanisms appeared to have started in January 2020, before the Covid-19 restrictions came into force.  There is a growing trend of exploring ADR straight after the pleading stage closes to avoid to substantial cost in complying with the procedural case management directions in the lead up to a trial. This will not only save on court resources but also result in a good outcome for the parties collectively more so than not given the obvious uncertainties, risk and cost implications associated with running a matter to trial.

What to expect next?

It may be that what we see in the future is a more nuanced approach, with interim applications being entirely heard remotely and some stages of civil trials (such as the delivery of opening/closing submission and delivery of judgment) being heard remotely to save on court resources and on parties’ costs, while other aspects of trial/key witnesses being heard in person. Exactly what the new normal will involve, and what will be preserved from this chaotic time, remains to be seen. However, it is difficult to disagree with Sir Geoffrey Vos, who notes that “the new normal, to which we should aspire, must provide a far more flexible dispute resolution process than has historically been the case”.

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