21 April 2020

Dispute resolution in the age of isolation – An Update

Since 26 March 2020 when we last surveyed how mediation, arbitration and litigation were being conducted in the current circumstances, matters have evolved at a rapid pace, particularly in the English court system. We have seen unprecedented use of technology as the courts focus on getting business done as usual so far as possible.

The single most useful advance is that Her Majesty's Courts and Tribunals Service is now producing an operational summary every working day. This gives information about how the courts are working during this period, and can be found here.

Broadly speaking, the courts are adopting video conferencing through services such as Skype. For example, in the Commercial Court, on 27 March, Mr Justice Teare agreed a proposal from the litigants involved to conduct a trial by Zoom video conferencing and to stream it on YouTube to ensure that the principle of public access to court hearings was maintained. Although this development was facilitated by specific provisions in the Coronavirus Act 2020, its consequences are likely to have a lasting effect on the way that litigation is conducted which will long outlast the current pandemic.

HMCTS have recognised that there will be some capacity constraint in the system and have worked to categorise hearings according to urgency. Category 1 consists of "Work that must be done" and Category 2 consists of "Work that could be done". A detailed breakdown of work that falls into the two categories has been published here.

We do not understand this to mean that other work will not be done, but it will have a lower priority.

Further, we have seen the specialist courts issue specific guidance, such as the Temporary Insolvency Practice Direction 2020, which provides detailed guidance for working in the insolvency courts in the current circumstances. A copy can be found here.

In summary, although there will inevitably be some disruption as a result of lack of availability of court staff, masters and judges, and also a result of shortages of available technology, as a rule of thumb:

  • If you are involved in a civil dispute of any kind (excluding family for which see our family team for guidance), you should assume that any timetable for directions (eg disclosure, witness statements, expert reports) should be adhered to in the normal way unless advised otherwise.
  • If a hearing has been fixed (whether interlocutory or a trial), you should also assume that this will be taking place, unless advised otherwise), although it will almost certainly be remote with the use of telephones or video-conferencing technology. This may impact on the length of the hearing or the order in which witnesses appear.
  • If you are involved in a hearing of any kind, you will want to ensure that you have a quiet space in which to follow the hearing on your device and where you will not be interrupted. You may also wish to test factors such as the speed of your internet connection to check that you will be able to use whatever solution is being proposed. If you have any concerns at all about any of these factors, you should speak to the lawyers advising you well in advance of the hearing.

Disclaimer

The current global crisis is evolving rapidly, and the rules and guidance for individuals, companies and other entities to manage its implications are similarly fast moving. Notes such as this may be out of date almost as soon as they are published. If you have any questions prompted by this article or on any other matter relevant to you, please get in touch with your usual contact at Forsters.

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