Civil justice system remains open for business despite COVID-19 restrictions
While much of our society is embarking on a forced sabbatical, there has been no respite in the world of litigation. In this article, we consider some of the questions those contemplating, or already involved in, legal proceedings will undoubtedly be asking.
This article is intended to provide an overview of the current position. Details of the COVID-19 measures in place are subject to change. Those considering, or involved in, litigation are advised to seek specific legal advice on their circumstances.
Is my right to bring a claim affected by COVID-19?
No, apart from where this has been expressly legislated for (for example, restrictions on the right to evict tenants), the law remains unchanged by COVID-19. Indeed, in testing times like this, the importance of rule of law becomes very clear; the alternative being, effectively, anarchy. This applies as equally to civil law as it does to criminal law. It is primarily for this reason, combined with the uncertainty as to how long the pandemic/social distancing will last, that the judiciary and the legal profession are united in doing everything they can to ensure that the justice system still functions. Mothballing is not an option.
How is the civil justice system affected by COVID-19?
The short answer is that (with some exceptions) most civil litigation is proceeding, subject to some modifications. In most cases, the question of whether to litigate or not, should not be affected by social distancing restrictions.
The most significant impact on the system is the inability to safely hold physical face-to-face court hearings. However, court hearings are a relatively rare occurrence in the life of a typical civil claim. Indeed, the whole system is set up in such a way as to avoid hearings wherever possible. A hearing will normally only be necessary as a last resort when the parties cannot resolve their differences without the court adjudicating. The ‘costs follow the event’ rule, meaning the loser pays the winner’s legal costs, discourages claimants from pursuing weak claims and defendants from defending strong claims. The same rule generally applies to interim applications. In practice, this means that most disputes are argued in correspondence and pleadings, and many are ultimately resolved by way of settlement (or abandonment). It is impossible to know how many claims are asserted, but the vast majority of legal disputes (probably over 95%) are resolved without the court’s intervention. Even where a court claim is issued (i.e. a party is sued), only a small proportion reach trial. By way of example, in 2018 there were 265 defamation claims issued in the Royal Courts of Justice, but there have been less than a dozen defamation claims actually tried in each of the last five years.
Where a court hearing is necessary, judges, lawyers and court staff are bending over backwards to accommodate hearings. During the coronavirus outbreak, there is a presumption that there will not be a physical hearing unless strictly necessary. Judges are embracing video conferencing so that hearings, including full trials, can go ahead. Zoom, Skype and Microsoft Teams are all being used. This technology has existed for some time, but has been under-deployed in the justice system because of largely surmountable concerns about logistics, open justice and proceedings being recorded. As many commentators have observed, the pandemic has forced the issue.
How can I instruct solicitors to assert a claim during the COVID-19 lockdown whilst social distancing restrictions are in place?
The process of instructing solicitors is much as it was before, but with the absence of physical meetings. Most law firms are offering consultations by video-conferencing or telephone. Whilst some lawyers and clients have resisted video-conferencing until now, many others have been using it for years. With video-conferencing now being used in all walks of life, from virtual pub quizzes and GP appointments, to Cabinet meetings, it has quickly become the new norm out of necessity (put simply, it is the closest we can get to real life face-to-face interaction). We have found that clients not already familiar with video conferencing have adapted to it very quickly. Clients provide documents to their solicitors by email or by cloud depositories such as Dropbox. Again, this was largely happening already at most modern firms, with documents then being uploaded to a case management system.
How are solicitors’ firms operating and litigating during the lockdown?
Much as they were operating previously, albeit with individual staff working remotely from home, connected to a network. Firms who have previously invested heavily in their IT infrastructure are no doubt faring better. Several years ago, we invested in a cloud-based system which enables our lawyers to work from home. Shortly before the lockdown, we moved our managerial and administrative staff offsite. The only practical difference for clients is that all our consultations are now conducted by Skype or telephone, rather than in the office. Many of our meetings (particularly with our international clients) were already conducted in such a fashion. Behind the scenes, we are conducting regular internal video meetings by Microsoft Teams so that we can continue to operate in a collegiate/collaborative fashion.
Are court buildings open?
Some are open, some are open to staff only, and some are closed. Where courts are closed cases have been transferred to one of the courts that remain open (termed a ‘Priority Court’). A list of each court’s status can be found here.
How can a civil claim be issued during the lockdown?
Most civil claims issued by solicitors are now filed online. Whilst there may be a delay in the court staff processing electronic submissions, the ability to file a claim is unaffected.
Can legal proceedings be served by email or fax?
The legal position remains that claim forms and other formal documents can only be served by email with the receiving party’s prior written consent or the court’s permission. With the exception of some documents that require personal service (e.g. injunctions and bankruptcy petitions), documents may continue to be served by first class post. However, with severe disruptions to the postal system (and many offices closed), the use of post over email is counterintuitive. Most law firms and some government departments are encouraging parties to agree service by email. Where a party unreasonably refuses this (for example, as a stalling device or simply to be obstructive), they risk being sanctioned in costs, particularly if this causes disruption to the claim down the line or forces an application for alternative service. The Association of Personal Injury Lawyers and Forum of Insurance Lawyers have agreed new guidance which they are encouraging members to adopt, to address disruption caused by coronavirus restrictions.
The position regarding service by fax is a little more nuanced. Prior written consent or permission must be obtained. However, para 4.1(2)(a) of PD6A provides that if a fax number appears on a solicitors’ letterhead, then consent to serve by fax can be inferred. This does not apply to email addresses on a solicitors’ letterhead unless the letterhead specifically states that service by email is accepted (most say the opposite).
A lesser known provision at para 4.1(2)(c) of PD6A allows a party to serve an opponent at any email or fax address included on a statement of case or response to a claim filed with the court. Thus, solicitors and litigants who diligently complete every box may already be inadvertently agreeing to electronic service without realising it.
The lockdown may force an arguably long overdue amendment to the CPR to automatically permit service by email on law firms who have an email address on their letterhead.
Those accepting service by email should be sure that the email address (and its junk/spam folder) is closely monitored. A prudent approach might be to accept service by email on a document by document basis and only after it has been safely received. Similarly, any party or law firm with a fax line that physically prints incoming faxes in an old-fashioned way – rather than circulating them as emails – needs to be careful that proceedings are not being served to a vacant office.
What if a defendant does not respond to a claim?
Assuming the claim has been served properly then default judgment can be obtained in the normal way. This is normally done by solicitors making a request online. Whilst there may be some delay in the court processing these requests, they are relatively straightforward. Where an injunction is sought, or an assessment of damages is required, then the matter will have to be listed for a hearing. To prevent default judgments being challenged down the line, claimants are encouraged to do everything they can to ensure the claim comes to the defendant’s attention – including seeking agreement for service by email. Royal Mail has reported that the coronavirus outbreak has caused considerable disruption to its services and thus it is not necessarily safe to assume post will be received in a timely fashion. Even if documents are technically deemed to be served, courts are likely to be amenable to setting aside default judgments where a defendant is not at fault.
Are civil court hearings going ahead?
Yes, a large number of court hearings are going ahead – predominantly using video or audio conferencing facilities. Inevitably, some court hearings are being adjourned. However, uncertainty over the length of time social distancing restrictions will be in place, and the need to have a working system of justice, are the impetus behind the decision to try and to continue to hold as many hearings (in one form or another) as possible, rather than suspending the courts. Anyone working in the civil justice system will be acutely aware that the system was already close to capacity and suspending the courts would quickly cause a huge build-up of cases. At the present time, a High Court claim typically takes well over a year (and sometimes beyond) from the point of issue to trial. It is obviously important that litigants enforcing their legal rights should be able to achieve finality in a reasonable time.
HM Courts and Tribunal Service (HMCTS) have published lists that divides work into two categories: “Priority 1: Work that must be done” and “Priority 2: Work that could be done”. The lists can be found here. The Priority 1 list includes committal applications, applications for injunctions, freezing order work, enforcement that does not involve bailiffs, applications where the trial is listed in the next three months, multi-track hearings where the parties agree its urgent (subject to triage) and work with a “real time element”. The Priority 2 list includes applications to set aside default judgments, applications for security for costs, small claim/fast track trials and infant settlement proceedings. The lists apply only to county courts.
The High Court has published a contingency plan, which divides work between ‘urgent work’ and ‘business as usual’. The pre-existing ‘out of hours’ provisions are being applied for urgent work. This means that there should always be a judge available to hear a genuinely urgent injunction application (remotely). Insofar as other work is concerned, the aim is to continue to progress cases, “…as far as possible and in accordance with the contingency plans put in place by the different Divisions and Courts.” Based on our experience to date (and most of our work is in the High Court), judges and masters are going out of their way to accommodate hearings using video or telephone conferencing.
The Court of Appeal is also conducting hearings remotely and has already handed down judgment in at least on such hearing (Genentech Inc. v The Comptroller General of Patents  EWCA Civ 475).
The Administrative Court has circulated its own protocol.
How are video/telephone hearings organised?
This may be done by the judge or master contacting the parties’ representatives with a proposal (for example, circulating a Skype link) or by the court requesting that the parties agree and make arrangements through an existing provider.
Careful regard should be had to the need for the court to have at least an audio recording of the proceedings, whilst noting at the same time that if a party (or their representatives) recorded a hearing that they would likely be in contempt of court.
The Judiciary have published a protocol for remote hearings, which can be found here. This highlights the need for flexibility and acknowledges that there will be teething issues.
PD 51Y provides that where it is not practical for a video or audio hearing to be broadcast in a court building (which is likely to be the position during the coronavirus outbreak), that such a hearing may be in private, with members of the public being able to apply to hear a recording in a court building at a later date. Where the media are able to ‘dial in’, then the hearing may be classified as a public hearing. PD 51Y will cease to have effect when the Coronavirus Act 2020 ceases to have effect.
PD 51ZA clarifies that a person seeking permission to listen to or view a recording of a hearing may do so by request and is not required to make a formal application under the CPR. This will be the case until 30 October 2020.
Bundles for hearings will need to be prepared electronically in a format the court is happy with and made available in good time. Single paginated PDF files, made with bookmarks and/or hyperlinked indexes (in place of dividers) are likely to be most appropriate. Where file sizes are modest it might be possible to lodge/serve bundles by email. Where they are larger, then it will normally be necessary to upload them to a secure cloud depository such as Dropbox. The responsibility for preparing bundles normally lies with the claimant (in a trial) or applicant (in an application). However, where this party is a litigant-in-person, it is normal for the legally-represented party to take the lead. Litigants are encouraged to restrict the content of bundles to documentation that is strictly necessary.
Will any physical hearings be held?
These are not prohibited per se, although the presumption is that hearings will be held remotely.
What about enforcement?
Inevitably and understandably, in the short-term at least, with social distancing restrictions in place applications for orders for sale are unlikely to be viable (or at least practicable) options.
All possession proceedings have been automatically stayed for a period of 90 days by virtue of PD51Z. However, there is no reason why property could still not be charged (and applications for charging orders would seemingly fall under the ‘Priority 1’ category). Thus, whilst there could be a delay in realisation, judgment debts and cost orders can still be secured.
The normal factors should be considered before issuing legal proceedings, to determine the likelihood of recovery. It should be borne in mind that the economic consequences of the lockdown may mean that there is less liquidity in the system. Individuals and companies that were once attractive litigation targets may now be on the verge of insolvency.
What about insolvency?
The government has announced that temporary changes to insolvency law are to be introduced. Full details have yet to be published, although the focus appears to be on giving businesses some breathing space, including by suspending wrongful trading provisions for three months (retrospectively from 1 March 2020). The government’s announcement can be found here.
It is unclear whether temporary provisions will be made in respect of individuals who are suffering financial hardship and facing bankruptcy as a result of the COVID-19 outbreak. Anecdotally, we understand that some bankruptcy hearings are going ahead, but also that non-urgent work is being adjourned. One would assume that the courts will be sympathetic to a respondent who is suffering temporary financial hardship as a result of the outbreak, particularly where they can demonstrate they are likely to be able to pay their debts at some point in the future.
What about deadlines and where COVID-19 threatens the ability to comply with them?
The normal rules of limitation (that is, the time one has to bring a civil claim) still apply. It is unlikely to be sufficient to point to the general situation and expect the court to agree that limitation should be disapplied. This is particularly so given that law firms continue to be able to advise and represent clients and because claims can be issued online. However, there may be circumstances when a claimant could succeed in limitation being disapplied; for example, where they have been incapacitated. Where limitation is an issue or likely to be an issue, urgent legal advice should be sought. Applications to disapply limitation made well after the expiry of time limits will not normally succeed (and arguments that the claimant has had insufficient funds or been focussing on other matters generally tend not to succeed).
Where limitation is approaching there a number of steps a claimant (or preferably their solicitors) can take. These include seeking to agree a ‘standstill agreement’, issuing a claim protectively and not serving it (note it must be served within four months, and the claim can be called for in the meantime) or issuing a claim and agreeing (or seeking) a stay of proceedings. Note that standstill agreements and extensions of time for service must be agreed in writing and be clear about the new deadline. These methods should avoid the perils of a claim becoming statute-barred, but allow the parties time to seek to resolve the matter in correspondence/by alternative dispute resolution. The court may sanction a party in costs where a party unreasonably opposes a proposal and forces a claimant to issue and seek a stay (or oppose a strong application to disapply limitation). Issuing a claim also has costs consequences that do not necessarily apply pre-cation. It should be borne in mind that issuing proceedings (even if they are not served, or are stayed) potentially exposes both parties to an adverse costs order.
The Civil Procedure Rules have been temporarily amended to allow the parties to agree extensions to existing deadlines by up to 56 days without court approval, provided this does not put a hearing date at risk (PD 51ZA). Where a party unreasonably refuses to consent to a request for an extension, they are at high risk of being sanctioned in costs (not least because by forcing an application they are putting unnecessary pressure on the court system at a difficult time). Where a litigant’s reason for delay is that they have been self-isolating/suffering from COVID-19 symptoms, at this time at least, it will normally be unreasonable to expect them to provide medical evidence of this (particularly given current government guidelines discourage those with mild symptoms from visiting healthcare professionals). Whilst some litigants may take advantage of this, the court is unlikely to want to get involved in these types of disputes and will expect the parties to be flexible. Extensions of more than 56 days require approval of the court, but the court is required to take into account the impact of the pandemic in considering such applications. As matters presently stand, PD 51ZA will cease to have effect on 30 October 2020.
Don’t litigants need to physically sign statements of truth on witness statements and other documents?
Solicitors can sign statements of truth on claim forms and other pleadings, provided that they have express authorisation from their client and confirmation that the client has read the contents of the document and understands the consequences of instructing a solicitor to sign a statement of truth where they lack an honest belief in what is stated. A solicitor should never sign a statement of truth on behalf of a client unless they have had this authorisation and confirmation in writing (email will suffice).
Solicitors cannot sign statements of truth on witness statements on behalf of clients or third parties. CPR 5.3 provides that “where any of these Rules or any practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means”. It is easy for a client to sign a statement on a tablet or smartphone either with stylus technology or by inserting an e-signature into a Word document or pdf, although arguably the act of the witness simply typing out their name in regular fashion will suffice (provided of course this is done by the witness themselves).
To underline the importance of statements of truth, amendments to paragraph 2.1 and 2.2 of PD22 that came into force on 6 April 2020 have altered the required wording/. Statements of truth are now required to read “I believe that the facts stated in [these/this] [Particulars of Claim/Witness Statement] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
The position regarding affidavits is more complicated during the lockdown, as they must be sworn in front of a commissioner for oaths (e.g. a solicitor). Whilst their use is limited in civil proceedings, they are still required in specified instances (for example, in committal proceedings, insolvency proceedings or with freezing orders).
Mediation or arbitration
Finally, there is no reason why mediation (or even arbitration) cannot be conducted by video conferencing, with plenary sessions chaired by the mediator and then the parties breaking out into separate sessions with the mediator shuttling between and joining/leaving the two groups as appropriate.
Given the current uncertainty over how long society will be disrupted, mediation or arbitration may be an attractive option in many cases, particularly where parties wish to avoid a legal dispute dragging out.
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Articles are intended as an introduction to the topic and do not constitute legal advice.