UK Court hearings during the COVID-19 lockdown (England and Wales)

Parties to litigation are having to adapt to new practices as the English courts take steps to maintain progress in cases during the lockdown.

Her Majesty’s Courts and Tribunal Service has reacted to the changing situation through the issuance of various pieces of guidance and some temporary rule changes. In particular, litigants should be aware of the following:

• guidance on courts and tribunals’ planning and preparation;
• HMCTS Daily operational summary;
• guidance on telephone and video hearings;
• the Civil Justice Protocol Regarding Remote Hearings of 26 March 2020; and
• the Queen’s Bench Court Users coronavirus bulletin.

All of these are being updated on a regular basis as things change.

There have also been changes to the rules, in the form of three new Practice Directions. PD51Y deals with public access to court hearings where these are held remotely. It allows judges to order a hearing to be held in private if there is no way of allowing the public access, but the cause lists now invite members of the public and press to call the court if they wish to see or hear a hearing. No formal application is necessary. Hearings should also be recorded and the recording made available on request to the public.

PD51ZA increases the length of an extension of time that parties can agree to without applying to the court, from the usual 28 days to 56 days. The usual caveat applies that this is only appropriate where no hearing date is jeopardised. Extensions of more than 56 days can be applied for on paper. There is also a temporary Insolvency Practice Direction, dealing with electronic filing of notices, the use of remote hearings and the swearing of affidavits via video links.

What we are seeing

In the early stages of the outbreak, many parties assumed that hearings would commonly be adjourned until the crisis had abated. It has become clear that the higher courts do not view this as a realistic option. It is unknown how long the restrictions on movement will be in place and in what way they will be lifted. Re-listing cases would lead to delays, often of more than a year. Trials on paper are not permitted by the CPR, as the judge held in Conversant Licensing v Huawei Technologies [2020] EWHC 741 (Pat), despite the claimant’s imaginative efforts to devise a way to do this. Remote hearings have therefore become the default option.

The courts are primarily using BT MeetMe for telephone hearings and Skype for Business for video hearings. Other platforms have appeared in the cause lists, but the variety seems to have reduced over the last few weeks, possibly due to concerns over security. Very short adjournments were allowed in some cases early on in the lockdown for arrangements to be made for a remote hearing, but parties are less likely to be allowed such time now.

Remote procedural hearings in the Business and Property Courts that we have participated in have gone very smoothly so far. Bundles created as PDFs can be a little slow to use and certainly slower than commercially available electronic bundle platforms. Complex trial hearings will present a greater challenge, but our sense is that many will be manageable with the right preparation. Much will depend upon the personal circumstances of those needing to be involved.

Refusing remote hearings

In many cases one side will be keener than the other to proceed with a remote hearing. The fullest judicial comment we have on this at the time of writing is in Hyde and Murphy v Nygate, where the claimants applied to adjourn a five week trial, listed for June 2020 and involving four factual witnesses and thirteen experts. The judge rejected the claimants’ arguments:

• It was not contrary to government advice for hearings to go ahead. The judge referred to the various primary and secondary legislation and guidance issued by the Government in response to the COVID-19 pandemic and held that those materials present a clear and consistent message that as many hearings as possible should continue and they should do so remotely as long as that can be done safely.

• Technology is capable of delivering a remote trial of this complexity. The judge noted that several trials had already been concluded successfully, though they had been less complex. The claimant’s reliance on negative comments about an electronic trial bundle in Invista Textiles UK Ltd v Botes was misplaced: the issues in that case had arisen from witnesses using an electronic bundle while counsel used a hard copy and would not arise where everyone used an electronic bundle.

• Safety concerns about witnesses who lived with vulnerable family members were relevant, but concrete examples were needed and it would have to be shown that reasonable efforts had been made to address these.

• The risk of procedural unfairness was one that affected both sides equally, but the parties here were both well-resourced and well placed to manage a remote trial.

From a practical perspective, the judge noted that it might make sense for participants in the remote trial to attend from a joint location (eg their respective solicitors’ offices), provided social distancing was observed. He emphasised that both sets of solicitors should co-operate in making arrangements for the remote trial, taking into account issues such as necessary internet bandwidth for each participant. He also noted that with the situation developing so quickly, adjourning a trial that was still ten weeks away might be premature.

A fast changing picture

Much of the guidance published by the courts since the COVID-19 outbreak has already been updated or replaced. As the situation and government advice change, so will the response of the courts. All parties in the midst of court proceedings will need to ensure they stay up to date.

For practical tips on managing remote hearings, see our article based on experiences in international arbitration here.

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.