The courts are rapidly adapting to the new social distancing requirements in an effort to contain the spread of COVID-19. Equally, the courts are also taking steps to mitigate the longer term effects such restrictive measures will have on their ability to resolve disputes efficiently.
If you intend on initiating legal proceedings or already have legal proceedings on foot, it is important you are aware of what changes there are, and what they mean for the conduct of your matter.
The courts continue to function so far as they are able to safely do so, with most matters being heard as they become due for hearing.
Indeed, it is becoming apparent from the growing number of cases that the effects of coronavirus are not, of themselves, enough to warrant delays to existing hearings.
Recently in Re One Blackfriars Ltd (in liquidation)  EWHC 845 (Ch), the judge dismissed an application to adjourn a five-week trial made on account of the effects of COVID-19, stating that “as many hearings as possible should continue, and they should do so remotely as long as that can be done safely.”
New matters of an urgent and public nature, such as those relating to individual liberty and public safety, are being prioritised.
More specific to the civil jurisdiction, the courts have released a list outlining what matters it considers to have priority.
Longer than usual delays are otherwise expected to ordinary litigious matters as they come up for trial date allocation.
Using technology to limit physical attendance
The courts are minimising physical attendance through the use of technology in order to conduct hearings remotely. To that end, they have published an amended protocol that deals with this.
Hearings conducted remotely continue to remain largely accessible to the public through direct access to a livestream of the hearing over the internet or in another court room.
The ‘COVID Direction’
The courts have also implemented a new Practice Direction whereby parties are able to agree to a 56-day extension (up from the usual 28 days) for compliance with a rule, order or practice direction without the need for court approval (and as long as it does not put at risk any hearing date), in an effort “to ensure that the administration of justice is carried out so as not to endanger public health.”
Money claims (of up to £100,000) can continue to be issued online via the courts’ e-filing system (MCOL), to which Francis Wilks and Jones is fully connected. Higher value claims can be issued in the usual way at the High Court.
If a claim is not defended
Where a claim is not defended within the time required (or agreed, if there is an agreement for an extension of time), the claimant can still apply for default judgment, either by way of MCOL or by a paper request to the High Court.
If a claim is defended
Where a claim is defended, the courts continue to notify claimants of this and the usual litigation process follows. Any delays as a consequence of the coronavirus pandemic are likely to be encountered at the hearing stage, being either the hearing of any interlocutory applications (such as strike out and / or summary judgment) or trial, where oral evidence is critical to the judge’s determination of the issues in dispute.
The reality is that no one knows when things will be back to normal. For now, we must accept this ‘new normal’ and search for the most effective ways in which to provide our clients with the best results possible.
One option we strongly recommend our clients consider is mediation. Due to the current lockdown, parties are unlikely to be able to meet in a face-to-face mediation for a number of months, so remote mediation is becoming increasingly popular. Remote mediation (by way of video) still allows parties to seek to resolve their claims without having to wait for a face-to-face meeting, or the more lengthy court process. Indeed, it is likely that obtaining a trial date for the final hearing of a dispute will now take longer than before, as there will still be a backlog of hearings once the lockdown has been lifted. Read our recent post on how remote mediation works and what benefits it has.
Winding up petitions
Winding up petitions can still be issued online, and the courts intend to progress winding up cases remotely where possible. It is also still possible to advertise winding up petitions in the London Gazette using the online automated link. The weekly winding up list in the High Court is currently taking place as normal each Wednesday via Skype and only a few cases were adjourned when the government was trying to put new procedures in place. However, in light of the UK Government’s planned suite of insolvency changes, the continuing availability of winding up petitions may also change should a longer term moratorium on their filing be applied.
Bankruptcy petitions are still being issued by the courts. Generally, the courts are setting longer periods for the first hearing of the petition, but individuals can still be served with bankruptcy petitions (and earlier statutory demands) despite the lockdown. Again, as above, the Government is continuing to review this area in an attempt to assist individuals during a time when they may not be working. However, it should be remembered that the majority of debts that creditors will be seeking to be paid, will have been incurred prior to lockdown.
Currently there is no enforcement action being taken by High Court Enforcement Officers, as enforcement visits are not deemed to be ‘essential services’ under the current UK Government criteria. There are, however, other “enforcement” options that are available to creditors which we would be happy to discuss with you.
Equally, the courts are not proceeding with possession claims, after the UK Government signalled a moratorium in relation to tenancy matters. However, a number of our clients are continuing to instruct us to prepare and submit claims for issue so that they can be “at the front of the queue” when the current embargo is lifted.
Court practices are changing
The COVID-19 situation is changing rapidly and the practices of the courts are likely to change with very little notice. Francis Wilks and Jones is closely following those changes and will continue to update its clients as things develop.
Legal advice and assistance during COVID-19
Francis Wilks and Jones continues to provide quality legal services to its clients during this difficult period. If you have any questions about these changes, and how they affect you, contact Mike Lockton, Mark Ovenell or Tom Serafin.