Today has seen the announcement of the first substantive amendment to court practice to combat the threat posed by the Coronavirus: Crown Court trials of three days or less are not to commence until further notice.
In the same announcement, the Lord Chief Justice states that ‘steps are being taken in all jurisdictions to enable hearings to proceed whether by telephone, video link or online’. To date there have been no official announcements by the MoJ as to the steps to be taken to maintain the administration of civil justice during the pandemic.
However, from my own and other members of Farrar’s discussions with judges, it is tolerably clear that, where at all possible, hearings will proceed. This approach is in line with the Influenza Pandemic Guidance published in 2013 and updated in 2017 which emphasises that the Justice system remains operational: see www.gov.uk/guidance/pandemic-flu.
What in practice is this likely to mean and how can you best adapt to minimise disruption to your practice?
The Courts are likely to be sympathetic to sets of directions which treat the next two to three months as fallow where Part 35 medical experts are concerned.
The overwhelming majority of Part 35 medical experts remain in clinical practice. Medico-legal work will almost certainly be treated as non-essential by them while Coronavirus poses such a significant threat to healthcare services. The likelihood of Part 35 medical appointments proceeding in the next three months will become vanishingly slim as will the prospect of reports being produced.
It would be prudent to provide directions for the provision of reports by the end of 2020 if the appointment for examination is yet to take place.
Yesterday, I obtained an order in which the judge allowed an additional 28 days for the extension of time over and above that allowed by CPR r.3.8(4): that is, 56 days are available to the parties to extend time. Although one needs to be careful to ensure that such an extension does not fall foul of the requirement that no hearing date is put at risk, it seems to me prudent to be seeking this order as a matter of course.
Directions involving steps that require minimal contact are likely to be ordered in the usual way within the usual timeframe. For example, in the case mentioned above, disclosure and witness statements were ordered in the usual way since the necessary work could be done while avoiding any unnecessary face to face contact.
However, the obtaining and disclosure of medical records (indeed any records held by a third party) is likely to become an even more fraught process than it ordinarily is. Where disclosure involves reliance on a third party, e.g. a healthcare provider or employer, extra time for compliance should be sought.
Hearings will, so far as possible, go ahead. It is a racing certainty that any hearing that is not a final hearing will be by telephone.
Applications and PTRs are already dealt with by telephone in the majority of cases. If you have such a hearing currently listed but not by telephone then you should as a matter of urgency obtain the agreement of the other party that it be held by telephone and inform the Court. I suspect that Court listing will be somewhat relieved for you to have taken the initiative.
CCMCs are routinely listed in person and for very good reason. Negotiation on directions and budgets is often very fruitful at Court. The minutiae of the cost budgeting exercise are best considered and the outcome agreed alongside your opponent rather than remotely.
Over the next few months, CCMCs are likely to be listed by telephone. Lest we forget CPR r.3.16(2) states that CCMCs are to be conducted by telephone or in writing where practicable.
The definition of practicable is likely to be considerably stretched to encompass all CCMCs except possibly those where there are multiple parties and/or the complexity of the case is such that a telephone hearing would be inappropriate. For example, a CCMC with a litigant in person may be considered to be inappropriate for a telephone hearing especially where issues such as Fundamental Dishonesty are raised.
Again it may be sensible for the lawyers to take the initiative and agree between the parties that a currently listed CCMC should be by telephone then inform the Court of that fact and the proposed arrangements.
One difficulty may be that CCMCs are usually listed for 90 minutes or more which takes them outside the usual scope of telephone hearings which tend not to exceed a one hour time estimate. Given the exceptional circumstances, the Courts may well relax this approach and list hearings in excess of one hour by telephone. If you consider that the CCMC may well be completed within one hour then inform the Court to ensure a telephone listing.
The timely production of an agreed CCMC bundle in pdf format including the latest Precedent Hs and Rs will be fundamental to the smooth running of a telephone CCMC.
Block listing at a single time will have to stop if telephone hearings are to proceed. This is likely to pose a particular challenge for the listing officers at certain courts who have no experience of producing a bespoke daily list.
Attendance at Court
The Bar, through the Bar Council and its specialist associations, is pressing the MoJ for clarity on the position as to attendance at Court. The position as to trials requires a swift and clear decision. The prospect of conducting such a trial remotely by video link is frankly preposterous given the limitations on such technology in the Court system. I would expect a blanket adjournment of civil trials listed for the next couple of months fairly soon.
Pending that clarification, my own little tip is that if you are attending Court make sure that you have a bag that you can put all your files, mobile phone, pens , wallet etc. in. To be required to place items into the communal plastic petri dishes provided by security is to invite 14 days of self-isolation on yourself.
Other than the availability of experts, there is really no practical reason why these cannot proceed as planned albeit remotely. At Farrar’s Building for example, we use a suite of technology such as telephone conference calls and video conferencing via Star Leaf on a daily basis. These applications are accessible to all our clients and are easy to set up.
My own experience of conferences by telephone involving sometimes more than four other parties including experts has been positive. A clear agenda and firm but fair direction of the conference by whoever is chairing can avoid the risk of participants shouting into the void.
No doubt there are many more useful tips that practitioners may wish to share to ensure that business carries on as normally as possible. We welcome your suggestions on Farrar’s social media platforms. If you have any specific queries, please do get in touch with members of Chambers or the clerks.
You can view our Chamber’s Coronavirus Policy here.