Coronavirus/COVID-19 and the Impact on Litigation

In these unusual times, we are all having to adapt our social, family and working lives to deal with an unprecedented global situation which throws up a vast number of new worries and issues to deal with. This article looks at concerns raised specifically about litigating in the current climate.

As litigators, we are seeing an understandable and rising level of concern about the effect on ongoing and potential litigation both of the pandemic and the consequent restrictions on movement and interaction imposed by the Government; after all, there is no system in place for the wholescale conducting of litigation from commencement to trial on a remote working basis, and it can often be difficult to agree variations to deadlines within the confines of the CPR and an adversarial (and therefore often acrimonious) litigation system.  We have set out below some responses to the most frequent queries we are facing.

Extending deadlines

Whilst we would hope that most opponents would engage sensibly in attempts to agree amendments to directions or extensions to deadlines due to the effects of coronavirus and/or Government restrictions in place impacting the proceedings, it is realistic to assume that some opponents will seek to use such matters to their advantage by adopting a doggedly rigid stance.  In such circumstances, we would expect the Courts to be sympathetic to an application for relief from sanctions; we would urge litigants to issue applications promptly and fight vigorously for relief as their application is likely to succeed.

In addition, litigants should consider applying proactively for a direction that parties can agree 56-day (or longer) extensions to deadlines without further Court orders; such an order was very sensibly granted earlier this week in the case of O’Driscoll v F.I.V.E Bianchi S.p.A and we would expect it to become a regular feature of cases pending official guidance clarifying the position.

There have also been calls for limitation periods to be automatically suspended and, interestingly, The Law Society has confirmed on its website that it is discussing with HMCTS whether all deadlines (including for periods of limitation) could be automatically suspended or extended for a period of two to three months.

Operation of the Courts during the pandemic

HMCTS' rolling coronavirus guidance on its website appears to be somewhat behind the curve of current Government guidance on social distancing and the restriction of non-essential travel; essentially, it confirms that at present (with the exception of jury trials which have been suspended) as long as court users do not have confirmed or possible COVID-19 and are not being required to self-isolate, they should attend as usual unless they are told otherwise.   

However, this could change at any moment and we have already seen a rapid move away from physical presence at a hearing being the default.  The Lord Chief Justice on 17 March 2020 issued a statement recognising that "there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible" and pointing out that the CPR provide for "considerable flexibility" in this regard.  Guidance from HMCTS issued last week also encouraged judges to maximise the use of video and telephone hearings using current technology and set out the steps it is taking to extend its capability, including increasing the number of licences and training for its audio conferencing system so that it has complete coverage of all court rooms by next week and activating Skype for Business on all staff and judicial laptops for use in remote hearings.

In a rapid acceleration to the process, and following a statement from the President of Employment Tribunals (Scotland) on Friday 20 March that from this week all in-person hearings will be converted to telephone case management hearings on the first listed day, the Lord Chief Justice followed up later that day with a further announcement "The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely....It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months. For that reason we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology..."

It is possible that further revised guidance will be issued shortly following the more restrictive measure on movement announced on 23 March.  In any event, we would expect this guidance to continue to be updated frequently and urge all court users to keep watching for the latest updates. 

Mediation

Understandably, we are seeing an increasing number of mediators offer services via remote and videolink services, e.g. Zoom and Skype.  Rather than cancelling or postponing mediations due to travel restrictions, parties should consider the merits of proceeding on a remote basis to progress or resolve the case in a sensible and cost-effective manner.  This will only work, however, where all parties have access to a laptop or computer (phone screens will not be ideal due to the size where multiple participants are linked), a stable internet connection, and access to scanning/printing or other means of producing a settlement agreement.

Summary

In conclusion, our current advice for litigants is to:

• Seek to agree the extension of deadlines as soon as possible.
• If extensions cannot be agreed, make an early and robust application for relief from sanctions.
• Consider applying at an early stage for a direction that parties can agree extensions of 56 days (or longer) rather than the standard 28 days without referral back to Court.
• Minimise unnecessary travel in accordance with Government advice and in particular bear in mind the new default position that some or all participants in a hearing should take part remotely - seek to utilise video or telephone hearings wherever possible.
• Conduct mediations remotely where possible.
• Above all, keep up to date with the guidance!  Advice from the Government, the Law Society, and HMCTS is changing daily and updates are being issued with increasing rapidity.