The return of ‘normal’ court hearings is a necessity for the bulk of personal injury litigation. Court hearings and judicial determinations are essential: both for clients and their legal representatives (whether claimant or defendant). However vacating of hearings has become the norm.
Listing will always be a matter for the judge and will be subject to Civil Listing Priorities. Judges (and participants) are finding that remote hearings are much more tiring, and as a result the number of cases that can be heard in a day is going to be far less than what was occurring pre-Corona.
How can we as legal representatives assist the Courts in getting the cogs of justice turning once again? Below are a few practical suggestions.
1. Keep the applications as simple as possible
Judicial time is at a premium, particularly when matters have to be carefully timetabled. Parties simply cannot be sent outside the Court to ‘discuss’ matters. Judges will have limited opportunity to read the papers and will be more inclined to adjourn matters if insufficient time estimates have been given.
For applications that have already been made, give serious consideration to narrowing the issues by dropping ‘speculative’ aspects of an application i.e if you are applying for an unless order, think seriously about whether a strike out should be tacked onto the application on the off-chance the judge might be in a very bad mood towards the transgressing party. If the Court knows it will only have to consider making an unless order rather than the more draconian strike out then it is more likely to list the matter for a shorter telephone hearing sooner rather than later.
If the matter has not yet been listed, a note on the court file indicating that the application is now narrower in scope and a reduction in hearing time may well result in the application being heard sooner and by telephone.
2. Make sure the judge is provided with an electronic bundle
Paper based claims create difficulties for court staff for a variety of reasons during normal conditions. The current crisis magnifies such problems.
For any hearing, ensure that an electronic bundle has been provided to the judge. In the electronic ‘ bundle’ do not assume that the judge will have all the relevant papers in the case file. Court files may be stored in other courts (which cannot be accessed) or there is a lack of administrative support to pull up all the relevant papers.
Include all essential documents, but do exercise some discretion as massive sized PDF files will not be accepted.
Make sure the PDFs can be searched (OCR) and each page is numbered.
3. Remember the power of the Consent Order and dealing with matters on paper.
Under CPR 23.8(b) the Court has considerable powers to deal with applications on paper. This can be by either the parties agreeing a consent order, or importantly by the parties agreeing that the court should dispose of the application without a hearing. This does not mean that submissions cannot be made, but they can be done in advance on paper. There is no reason why parties cannot suggest to the Court a time table to serve evidence and skeleton arguments (if necessary) so that the matter can then be considered on paper.
However, remember the requirements under CPR 23 PD.11.1 : the parties need to confirm that all evidence and other material on which they rely have been disclosed to the other parties to the application. There is no right to seek a variation of such an order. In effect, if you are unhappy with the outcome, you have to appeal rather than request a further hearing.
Consent orders also do not necessarily have to go to a judge for approval. Note CPR 40.6 which provides for certain consent judgments and orders to be entered and sealed by a court officer. The requirements for such consent orders are that:
(i) The judgment or order is for:
(a) payment of money or delivery up of good. Obviously most PI claims will be for damages so this requirement will be satisfied;
(b) dismissal of any proceedings, wholly or in part
(c) a stay of proceedings
(d) the stay of enforcement of a judgment
(e) the setting aside of a default judgment which has not been satisfied under part 1
(f) the payment of money which has been paid into court
(g) the discharge from liability of any part
(h) the payment, assessment or waiver of costs, or such other provision for costs as may be agreed
(ii) None of the parties is a litigant in person
(ii) The approval of the court is not required i.e infant approvals, approval of a protected party
Again it would be of assistance to the Court if the application makes clear that this is a matter that can be dealt with by a Court Officer, rather than a judge.
4. Small claims: paper hearings
In relation to small claims, remember that small claims trials can be held on paper if the parties and Court agrees: see CPR 27.10. There seems no reason in principle why parties cannot agree between themselves to make written submissions, possibly written responses, and then send them to the court in an e-document and ask the Court to resolve. Remember that the judge will have to prepare a note of their reasons and send to the party.
5. Be realistic as to what will go ahead and cut your cloth appropriately.
Straight forward quantum trials and RTA liability trials should be able to be conducted fairly and effectively via video link. Where there are children or need for translators, remote hearings are unlikely to take place.
There has been a trend for issues of ‘fundamental dishonesty’ to be live in a large number of personal injury trials. Few if any courts will be happy to have a remote hearing where the credibility of a party has such potential ramifications. If fundamental dishonesty has been raised in a defence but only as a matter of course and is not going to be seriously pursued, then serious consideration should be given to informing the Court of this fact. It may encourage a remote hearing.
Equally, claimants should be made aware that pursuing unrealistic or inflated claims is likely to mean that a remote hearing is less likely to take place as time estimates will be longer and defendant insurer’s less willing to compromise. The fewer issues there are in contention between the parties, the more likely a court will be willing to deal with the matter over a video link.
This article is the author’s own opinion and does not constitute legal or professional advice. The law may have changed since this page was first published.