Litigation as usual: most courts and tribunals are operational during lock down
After a few adjustments to accommodate the current circumstances, the courts and tribunals of the UK are continuing to operate as best they can during the coronavirus pandemic.
According to government information, which was last updated on 22 May 2020, 159 courts remain open to the public for essential face-to-face hearings and 115 courts are open for staff and judges to work in the building but are closed to the public. However, 67 courts are suspended.
With court systems continuing to run, Covid-19 does not prevent you or your company from being sued or prevent you from issuing proceedings and starting a claim if you are within the appropriate time limits which continue to run.
Civil and Criminal Courts
The civil and criminal courts are continuing to operate via online video conferences, usually on Skype for Business, where possible. The key message from the civil and criminal courts is that it is business as usual, so parties should ensure that they continue with case preparations and adhere to relevant deadlines. This has meant the FW team has continued to be busy advising its clients engaged in litigation, including making urgent applications at court where necessary.
Most courts and tribunals are continuing to avoid physical hearings and are arranging remote hearings wherever possible. However, from 1 June 2020 changes are to be introduced in the arrangements for hearings in the Rolls Building in London.
From that date, there are likely to be four kinds of hearing taking place, ranging from fully remote hearings with the Judge at home to normal physical hearings in which all the participants attend in person. The ‘middle ground’ is a hybrid hearing with the Judge and some participants in Court, and some participating remotely. The decision as to which sort of hearing is appropriate in any given case will be a judicial decision. Only 13 Courts in the Rolls Building are suitable for hybrid or normal physical hearings and so only a limited number of cases will be able to be accommodated in this way. Accordingly, the majority of hearings will probably continue to take place remotely. As various lockdown restrictions are eased this may change further.
The majority of jury trials have currently been postponed to protect the safety of all court attendees and staff, but last week saw the restart of jury trials in the Old Bailey, Manchester Minshull Street, Bristol and Cardiff. New trials have also been listed to start this week in Reading, Warwick and Winchester. Special arrangements have been put in place at these courts, in line with Public Health guidelines, to protect the safety of all attendees. We expect that this phased restarting of jury trials will continue as the courts continue to reopen gradually.
The business as usual approach extends to the attire of those in attendance at remote hearings who are expected to dress in business suits even if they are only in their bedroom or living room! Only the judge and the barristers are expected to turn their videos on during the hearing and all other attendees must be on mute unless otherwise directed by the judge or master.
Hearings remain open to the public and can be accessed by the video link made available on the case lists published each day. A recent trial in the Commercial Court was also live streamed via YouTube to meet the open justice requirement. This virtual access to hearings means journalists are able to listen in to more than one hearing at a time, as they are no longer required to be physically present in the court room. This is likely to increase rather than reduce the risk of publicity!
The full protocol regarding remote hearings in the County Court, High Court and Court of Appeal is available here.
The Employment Tribunal has taken a slightly different approach to the civil courts and has converted all preliminary or final hearings due to take place before Friday 26 June 2020 into case management preliminary hearings by telephone so that the relevant hearing may be relisted and any necessary orders made. Although the case management preliminary hearings tend to be much shorter (usually around 30 minutes) a great deal of preparation is still required by all those involved in the proceedings.
The Presidents of the Employment Tribunals have also announced that any case management directions which were due to take place between 23 March – 26 June shall no longer apply.
In their most recent FAQ document, the Presidents of the Employment Tribunals have encouraged the parties, in the spirit of mutual co-operation, to assist the Tribunal to further the overriding objective by actively engaging and cooperating with each other and the Tribunal. Both sides of the litigation are therefore encouraged to agree any points they can amongst themselves. The guidance also encourages those who are legally represented not to take unfair advantage of those claimants who are unrepresented in the proceedings.
We have also heard reports of the new Kinley platform being used by the Employment Tribunal to hear cases which remain listed for a full hearing. Parties are able to sign in both virtually and by telephone and the latter seems to be preferable for those experiencing connectivity issues or attending purely to observe the proceedings. Those who are observing and/or are not giving evidence or participating are required to stay on mute. We understand that the Judge can monitor who is in attendance and will halt proceedings if a key person drops out of the call.
One drawback of remote hearings is that instructing solicitors and clients are not able to easily pass notes to their barristers as they normally would in a court room. To this end, parties have reportedly set up WhatsApp or other online groups to maintain a flow of conversation and information during the hearing if necessary.
All those with a remote hearing listed soon are required to refer to guidance published by the relevant Court or Tribunal and to prepare accordingly. There are some important details such as including hyperlinks in bundles which can be particularly helpful to the judge during a remote hearing.
Attending a virtual hearing
Rebecca Richardson, senior associate in our dispute resolution practice, describes a recent virtual hearing
Whilst it was slightly bizarre seeing a judge conduct a hearing from what I can only assume was her study, in my (so far) sole experience of a remote hearing, it was a good one. The hearing ran smoothly, although there were a couple of minor glitches with the recording and background noise (a reminder to all non-speaking parties to ensure that their mics are turned off!).
Participating in a hearing remotely is not too different to participating in a hearing in a court room. Electronic bundles were prepared for the Judge, although the counsel teams still favoured good old fashioned paper, everything ran to time (with a break in both the morning and afternoon sessions) and the counsel and solicitor teams were able to keep an open line of communication, with exchanges on WhatsApp replacing the more traditional ‘post-it’ note.
I would say, however, that the experience was very tiring (more so than an ordinary day in court). And that was as one of the non-speaking instructing solicitors, so I can only imagine how it must feel for the Judge and counsel. I look forward to seeing how I fare in my second remote hearing next week!
Whatever the remote hearing participant’s experience, online hearings are likely to be something litigation lawyers and litigants are going to have to get used to, as I expect they will feature in our future even after the pandemic (hopefully) becomes a distant memory.
The authors of this article are happy to respond to queries from current or prospective clients of the firm. If you do not wish to instruct the firm, we hope you find this article and others we have written useful and you may wish to refer to the ACAS website https://www.acas.org.uk/. If you wish to instruct us, or to discuss instructing us, please contact one of our Employment partners directly or by using the contact form here and we will be pleased to discuss how we can assist you. If you are a journalist seeking further information, please contact us via email@example.com or by phoning 020 7614 2648.
Articles and commentary by our legal experts on the impact of Covid-19 are all available here.