The spread of COVID-19 presents an unprecedented challenge to the English judicial system and legal practitioners.
This note sets out what we know so far (19 March 2020) about how the courts are responding to the latest government guidance and includes practical information to help the increasing number of court users who are working remotely. Flexibility, understanding and patience will be key in these testing times.
Court Service Information about coronavirus arrangements
HMCTS has set up a dedicated webpage to update users with any central planning relating to how the service will operate during the crisis. In an update issued on 19 March 2020, the Lord Chief Justice said that in order to preserve access to justice, the default position should be that hearings are conducted remotely. Where that is not possible, sensible precautions should be taken by those attending hearings. Significant numbers of adjournments will create an untenable backlog and judges are urged to explore the possibility for compromise with parties before agreeing to adjournments.
There will, therefore, be few physical hearings taking place over the next few months and those which remain will be dealt with via telephone hearing or video conference.
HMCTS has published guidance on the use of telephone and video hearings during the Coronavirus outbreak. The guidance explains that the courts are making as much use of current technologies as possible and are working urgently to increase capacity. There is also draft legislation with the coronavirus bill published by the Department of Health and Social Care expanding the availability of video and audio link in court proceedings.
We have set out below how the Civil Procedure Rules and Practice Directions provide for remote hearings but, in the current crisis, the judiciary may not follow the normal procedure.
Telephone hearings – existing provisions in the court rules
Given the unprecedented nature of this crisis and the relative lack of VC equipment in civil courts currently, it seems likely that many hearings will be converted to telephone hearings in the first instance. We have already seen a willingness from the judiciary to implement telephone applications, which are permitted by the court's general case management powers under CPR 3.1(2)(d).
Where there is a telephone hearing, the standard directions in CPR PD 23A, paragraph 6.10 will apply, unless the court orders otherwise. These directions specify who is responsible for setting up the call (usually the applicant's legal representative) and how to set the call up. The practice direction lists the court's four approved telecommunications providers. The latest guidance from HMCTS also states that the courts are rapidly increasing the number of licences for the BT Meet Me audio conferencing system.
All telephone hearings are recorded and stored by the approved service providers and parties can request a transcript of the hearing from the court where the hearing took place. In multi-track cases (and in small and fast track cases where the court so directs), a case summary and draft order (and any other document on which a party wants to rely) must be filed and served by 4pm at least two days before the hearing. The requirements for documents in cases in the County Court and district registries can be found in the Guidelines for telephone hearings in district registries and the County Court.
Video conferencing – existing provisions in the court rules
CPR PD 23A, paragraph 7 provides that where parties wish to use video conferencing facilities, and those facilities are available in the relevant court, they should apply to the Master or Judge for directions. Paragraph 29 and Annex 3 of PD 32 provide guidance on the use of video conferencing in the civil courts. Video conferencing is usually ordered for witness evidence where the witness is abroad but the courts have signalled an intention to use the technology more widely during the Coronavirus crisis.
The latest HMCTS guidance states that, with effect from 18 March 2020, Skype for Business has been activated on staff and judicial laptops. Training and testing is underway to ensure the technology works so it would be worth practitioners installing Skype and testing it on their own systems. Skype tutorials are available on YouTube.
HMCTS also set up a Pilot, which started on 2 March 2020 and is currently running in Birmingham and Manchester, for video hearings for applications to set aside default judgments only (CPR PD 51V).
With circumstances necessitating a rapid up scaling in audio and video conferencing facilities in the courts over the coming months, it may be that these time and cost saving alternatives become more widely used in the long term too.
Adjournments and extensions of time
Adjournments and extensions will no doubt be decided on a case by case basis. CPR 2.11 allows parties to vary time limits by agreement in certain circumstances, but remember to also refer to CPR 3.8(4), which limits any such extension to 28 days where a rule, practice direction or court order requires a party to do something within a specified time and specifies the consequence of failure to comply (and this would not apply if a hearing date would be put at risk). There have been calls for the rule restricting extensions to 28 days to be generally abrogated but that has not happened yet. However, 7BR report that Master Davison sitting in the High Court granted the claimant's request for permission for the parties to agree an extension of time for up to 56 days by consent in light of the current pandemic.
Signing court documents
In view of the fact that increasing numbers of practitioners are working from home, it is reassuring to know that there is no need for "wet signatures" on court documents. CPR PD 5A allows for all original court documents that require signature to be signed using "mechanical means". This permits formal electronic signatures, printed names in lieu of a manuscript signature or photocopy signatures.
Filing documents at court
At the time of writing, there are no plans to close the Supreme Court Registry before the Easter vacation but, acknowledging that some parties may prefer not to travel to court to file papers during the crisis, the Supreme Court will allow parties to email their documents to the registry, specifying the means by which they propose to file (i.e. post, DX or courier). For more detail, see the Supreme Court website.
In the meantime, both the Civil Division of the Court of Appeal and the Queen's Bench Division have closed some of their counters to the public and put temporary contingencies in place. (Senior Master Fontaine also issued guidance in relation to Queen's Bench Masters hearings and the Queen's Bench Action Department on 18 March 2020.)
But if the public counters at court are closed, there is a measure of protection in the CPR for those who need to file documents at court and can't use electronic filing or communicate with the courts by email. When the period specified for doing any act (for example filing a document) at the court office ends on a day on which the office is closed, that act will still be on time if it is done on the next day that the court office is open (CPR 2.8(5)).