Health matters: How are the courts continuing to respond to coronavirus?

• United Kingdom

• Litigation and dispute management

22-07-2020

Coronavirus has had a significant impact on the court system in England and Wales. The response from the Ministry of Justice, HMCTS and the Lord Chief Justice was swift. The work of the courts and tribunals was consolidated into fewer buildings and most hearings became virtual (either by telephone or by video).

Information on the changes was disseminated through a dedicated webpage of advice and guidance and a further webpage to host weekly summaries of HMCTS’ operational position during the COVID-19 pandemic. Numerous pieces of guidance were published, most of which are collated on a Courts and Tribunals Judiciary webpage.

On 1 July, the Lord Chancellor, Robert Buckland, made a statement setting out the progress being made to recover the operation of the courts and tribunals. At the same time, HMCTS issued a progress update which set out the work done by HMCTS in the short and medium term to increase court and tribunal capacity. Its focus is now on recovering its operation to increase capacity to deal with new work across the jurisdictions and the backlog of outstanding cases.

With cases of Covid-19 once more on the rise, the courts are unlikely to return to pre-pandemic practices any time soon. Whilst most court buildings have now re-opened in a Covid-secure way, it is clear that some of the changes introduced in response to the crisis will remain in place for some time. Some may become a permanent feature.

Hearings

Use of technology

At the start of the pandemic, the Lord Chief Justice announced that the default in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely. Since then, whilst some hearings have been fully remote, some have been ‘hybrid’ hearings with some participants accessing the hearing remotely and others (often the judge) physically present in court.

The rules for these hearings are a mixture of the old and the new. The Civil Procedure Rules already provided for hearings to take place by telephone and for evidence to be given by video but these existing flexible powers were supplemented by new provisions in the Coronavirus Act 2020 and a new remote hearings protocol (Protocol). For “hybrid” hearings, the Court can order proceedings to be transmitted to a second courtroom or other location in E&W that is designated as an extension of the Court (Gubarev v Orbis Business Intelligence Ltd). The court also introduced Practice Direction 51Y (as amended) to enable open justice to be maintained in circumstances when court buildings may no longer be open for the public/press to attend.

The Protocol applies to all civil courts, including the Court of Appeal, and covers practical issues such as how the method of remote hearing will be decided. It makes clear that any method can be considered, including conference call, Skype For Business, court video link, BT Meet Me, Zoom or simply a telephone call. The Protocol also deals with the arrangements for the hearing including the preparation and the filing of electronic bundles. Further guidance on hybrid hearings in particular is expected soon.

During the pandemic, the courts have been using audio and video technology where appropriate in an attempt to maintain the administration of justice and avoid a backlog of claims. HMCTS increased the capacity of the current BT Meet Me audio conferencing system and have been using Skype for Business, Cloud Video Platform (CVP) and in some cases (with their consent) other platforms for video hearings (see HMCTS guidance on remote hearings generally, specific guidance on how to join a telephone and video conference, guidance on using CVP and specific guidance on how to join a hearing via Skype For Business).

As most courts have now reopened, HMCTS are working to increase physical capacity to enable more cases to be heard. This includes mobilising other buildings to use on a temporary basis (so-called Nightingale Courts) and exploring options to stagger and extend the operating hours of the courts/tribunals including weekend sittings. With local and national restrictions in force, however, HMCTS is continuing to expand access to audio and video technology to support more remote hearings. It is also introducing a range of measures to make best use of judicial time, support court and tribunal staff and users and ensure the justice system is there for those that need it. It is supporting judges to list in ways that make full use of the space available and will support Alternative Dispute Resolution for cases where it is appropriate.

As to the future, HMCTS have said that, whilst some changes will be time-limited and will stop with the end of the pandemic, others may be valuable in the longer term. We expect that remote and hybrid hearings will became a permanent feature for some types of hearings, such as interim applications, Case Management Conferences and appeals.

Priority cases and suspensions

At the start of the lockdown, HMCTS published guidance on its priorities during the pandemic. HMCTS now update the listing priorities on a weekly basis published in weekly operational updates.

Adjournments

Some hearings may still need to be adjourned, for example, where a party has confirmed or suspected coronavirus. In those circumstances, the court can waive the application fee to adjourn. HMCTS has published guidance on how to make such an application.

Hearings may continue to be adjourned if justice would not be served by allowing them to go ahead in remote or hybrid format. However, in light of the clear guidance issued by the court and the flavour of recent judicial decisions, it is clear that the court is taking a hard line with such applications.

Jury trials

Jury trials cannot be conducted remotely and the Lord Chief Justice announced on 23 March that all jury trials would be paused to enable appropriate precautions to be put in place. Most Crown Courts are now listed as having resumed jury trials and additional jury trials are being held in some of the temporary Nightingale courts.

Filing

E-filing has been mandatory in the Business and Property Courts in the Rolls Building and regional centres for some time. It is also mandatory in the Central Office of the QBD (excluding the Administrative Court) and the Senior Courts Costs Office.

A number of court counters closed at the start of the pandemic (and may still be closed) so courts are taking a pragmatic approach to filing. For the latest position on counter closures and email addresses for contacting the court, see the weekly HMCTS operational updates and guidance webpage on the Courts and Tribunals Judiciary webpage. It is prudent to check with the relevant court to see if alternative arrangements to paper filing may be permitted. If email is permitted, parties should check the correct email address and any restrictions on format/size of documents that can be filed. We understand some County Court hearing centres are accepting filing by email.

Electronic bundles

Paragraphs 24-26 of the Protocol regarding Remote Hearings give guidance on electronic bundles. Key points are that the bundles should contain only ‘essential’ documents and authorities and they must be filed on CE File (if available) or sent to the court by link to an online data room (preferred) or email. The guidance in the Protocol has been supplemented by case law (see for example, Re TPS Investments (UK) Limited (In Administration)). HMCTS have introduced a document upload centre to enable professional users to upload court bundles and other documents at the invitation of court staff.

Directions

The default position is that parties must continue to comply with any deadline specified by the Civil Procedure Rules or court order.

Early on in the pandemic, a new Practice Direction (CPR PD51ZA) came into effect to give parties greater latitude to agree or apply for an extension of time. That Practice Direction, however, ceased to have effect on 30 October 2020 and, looking ahead, we consider the Courts will be less willing to take the pandemic into account when deciding whether to grant an application for an extension of time. This is because they will consider that parties have had more opportunity to plan for and overcome any challenges presented by the pandemic.

Updated 17 November 2020

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