Coronavirus has impacted all areas of our lives, affecting the lucky majority of us mainly only by way of restrictions on our daily existence. The knock-on effect of this is that many enterprises, economic, social and personal, are effectively on hold for the time being. This, along with reduced interaction between people, means that the number of disputes that arise is, thankfully, likely to be lessened as people hunker down at home.
Nevertheless, in some instances disputes are still inevitable. As was the case previously, all efforts should be made to resolve disputes amicably, ideally without involving the Courts. However, this is not always possible and, where is becomes necessary to issue or continue with a claim, provisions are being made to cope with the impact of the coronavirus on the justice system. In addition to specific changes to the rules relating to possession proceedings to prevent evictions at this difficult time, initiatives include:
• encouraging remote attendance at hearings, by video or telephone,
• temporary measures to allow hearings to be held in private, allowing viewing by video-link,
• waiving fees of some applications necessitated by the coronavirus,
• changes to the personal injury protocol designed to allow more time to deal the initial stages of such claims,
• with many courts or court counters closed, extending the existing use of electronic documentation and payment facilities.
However, many of the changes referred to above are discretionary, and measures have been implemented differently by different courts, so there is no certainty with respect to how these will be applied. Furthermore, for those for whom litigation has been contemplated, or is proceeding through the courts, deadlines will loom as quickly as in pre-coronavirus times, even when the rest of the world is seeming to stand still. It is understood that the Law Society has sought to reach agreement with HM Courts & Tribunals Service (HMCTS) in relation to how to deal with deadlines, but as matters currently stand, parties will need to make an application for an extension of time or relief from sanctions (depending upon the circumstances) in the normal way. It is hoped that processes can be automated or streamlined to reduce the burden on litigants and their lawyers, but at the time of writing this has yet to be confirmed.
It is understood that some Judges are taking matters into their own hands and ordering practical steps such as Master Davison in the Queens Bench Division of the High Court granting permission to extend the timetable by consent by up to 56 days (rather than the 28 allowed by r3.8(4)) (O’Driscoll v F.I.V.E. Bianchi SPA). However, without an order to that effect, there is no certainty with respect to how an application will be received. As all litigators are aware, greater uncertainty gives rise to greater risks, and the best protection against this risk is to take any steps promptly, and to complete all relevant tasks as far as possible in advance of any given deadline, to ensure that any eventualities can be dealt with appropriately, and to avoid making additional applications where necessary.
It is hoped that more initiatives will be implemented as matters progress. In the meantime, the usual rules apply and, to ensure that any case is not prejudiced, and to avoid costs penalties, any deadline should be complied with.
*with apologies to Gabriel Garcia Marquez
Continuing my note above on the impact of Coronavirus on Litigation, as of 2 April 2020 additional flexibility has been provided by the insertion of a new Practice Direction (PD 51ZA) into the Civil Procedure Rules 1998 (CPR). PD 51ZA amends Rule 3.8 of the CPR to allow parties to agree longer extensions of time than previously (up to 56 days rather than up to 28 days). PD 51ZA also ensures that the court will take into account the impact of the pandemic when considering whether to grant an application for an extension of time, should this not be agreed between the parties.
Rachel Waller is a Senior Associate with the Dispute Resolution department. If you need advice or assistance on any of the issues mentioned in this article please contact Rachel or another member of our expert Dispute Resolution team on 020 7631 4141 or email firstname.lastname@example.org
The above is accurate as at 30 March 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.