With the continuing disruption of the COVID-19 pandemic and the resulting closure of the physical buildings housing the Courts and Tribunals in England and Wales, we look at some of the practicalities for parties engaged in litigation during this unprecedented period, and assess some of the new court rules.
The Lord Chief Justice announced on 19 March that, during the pandemic, the default position will be that hearings should be conducted with one, some or all participants attending remotely. The approach of the Courts (a collective/shorthand term in which we include the Lord Chief Justice, the senior judiciary, and HM Courts and Tribunal Service) reflects the intention that the administration of justice should continue.
The Courts have already acted swiftly to ensure that extant litigation has been, and for an indefinite period will continue to be, heard in virtual court rooms, whether that be by telephone or video link.
In Part I of our update on these developments ( accessible here), we noted that the Courts have issued a Remote Hearings Protocol (the "Protocol"), calling on the Courts, parties to litigation and their representatives to be more proactive in relation to forthcoming hearings. The Protocol contains guidance suggesting that it will normally be possible for all short or interlocutory applications, or those that do not require witness testimony (although some cases involving witnesses may also be suitable for remote hearings), to be heard remotely. Fundamentally, the core objective of the Protocol is to ensure that as many hearings as possible are conducted remotely. This will almost certainly be the norm for the near future, at the very least.
Even in relation to longer hearings, thus far the Courts appear to be taking a robust approach. It has been widely reported that Mr Justice Teare recently ordered parties due to start a seven day Commercial Court trial of a multi-million dollar dispute, involving witnesses in multiple jurisdictions, to cooperate and facilitate a remote hearing. He refused a request for an adjournment of the trial, saying "given the fact that this trial has been scheduled to take place, given the circumstances, and given the guidance from the Lord Chief Justice that if at all possible there should be a remote hearing, what can there possibly be to object to the parties seeking to co-operate with a view to ensuring that a virtual hearing can take place?".
The Courts have also addressed the practicalities of virtual hearings which, despite being held remotely, can be conducted in a similar manner to "physical" hearings: Counsel teams can communicate by virtual notes; witnesses can be cross-examined via video conferencing facilities; transcribers can still provide live transcription services; and video conferencing facilities can allow hearings to incorporate virtual break out rooms in order for parties to confer. The Protocol also encourages the use of electronic bundles of documents and authorities for each remote hearing.
Recognising the importance of ensuring that open justice principles are protected, the Protocol also provides that remote hearings should, so far as possible, still be public hearings. To this end, the recently (and speedily) enacted Coronavirus Act 2020 allows for the live streaming of Court hearings, in order to ensure compliance with public access requirements of the Courts. This has already been put into effect: in the aforementioned Commercial Court trial, Mr Justice Teare directed that the proceedings be live-streamed via YouTube.
However, the Protocol also recognises that, in the exceptional circumstances presented by the current pandemic, providing for public access may be impossible; this should not normally prevent a remote hearing taking place.
Extensions of time
In addition to the new Civil Procedure Rules ("CPR") Practice Direction 51Y, discussed in Part I of this update, a further Practice Direction, PD 51ZA, came into force on 2 April 2020. PD 51ZA (Extension of time limits and clarification of Practice Direction 51Y) amends (in relevant part) CPR Rule 3.8. Paragraph (3) of Rule 3.8 provides that where a rule, practice direction or court order (a) requires a party to do something within a specified time, and (b) specifies the consequence of failure to comply, the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4) of that Rule.
PD 51ZA amends paragraph (4) of Rule 3.8 such that, unless the Court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 56 days (previously Rule 3.8 provided for an agreed extension of 28 days), provided always that any such extension does not put at risk any hearing date.
The Practice Direction also provides that any extension of time, whether agreed by the parties, or granted on the application of a party, beyond the new period of 56 days, requires the permission of the Court. An application for such permission will be considered by the Court on the papers (although any order so granted must be reconsidered at a hearing, should a party make an application to that effect).
In so far as compatible with the proper administration of justice, the Courts will take into account the impact of the COVID-19 pandemic when considering applications for the extension of time for complying with directions; the adjournment of hearings; and for relief from sanctions.
This new Practice Direction provides that it will cease to have effect on 30 October, but it can clearly be extended if circumstances dictate. For now, it provides a welcome mechanism for parties to agree extended time limits if the need arises. However, litigants should keep in mind that, in circumstances where directions, and a timetable, have already been agreed and, for example, trial is already listed, the additional 28 days will have little benefit if such extension affects the trial date (or any other hearing date): the provisions of Rule 3.8, namely that any such extension does not put at risk any hearing date, still apply. The amendment must therefore be viewed in that light.
Although multiple obstacles were envisaged, and may continue to arise, it is clear that the Courts are embracing the use of technology to allow proceedings to continue as normally as possible given the unprecedented circumstances. It is important that parties who are likely to be involved in hearings in the near future familiarise themselves with the Protocol (which can be found here).
If a remote hearing is ordered, parties will need to adapt their preparations accordingly. This will include becoming acquainted, well in advance, with the technology which the Court has approved to be used for the hearing in question. Testing the way the technology will operate in advance of hearings and trials will become second nature.
The enforced adoption of this alternative approach to trials may have longer-term effects on the operation of the Courts. We anticipate, for example, that electronic bundles may become the new norm. If the Protocol proves to be successful, it may also be the case that witness evidence (including foreign-based witnesses of fact and expert witnesses) will more commonly be heard by video-conferencing facilities, even after the COVID-19 pandemic has subsided. In short, one potentially positive outcome of this challenging period may be a proverbial "shot in the arm" for the efficient administration of justice which these changes will encourage.
The Courts have so far been pragmatic and efficient in implementing crucial guidance and protocols so as to facilitate the use of these unfamiliar formats. We anticipate that there will be further guidance, and amendments to the CPR, as the situation continues to evolve and as more parties transition to virtual hearings in particular.
In the longer term, it seems likely that the increased use of technology in litigation, and for hearings in particular, will continue to be of relevance and will become sewn into the fabric of the judicial system.
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.