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Guest comment: HSF disputes chief assesses the City litigation market’s Covid-19 response

In light of the human impact of Covid-19, the immediate concern for businesses is the health and safety of their people and clients.

In addition, the pandemic has caused unprecedented turmoil for the global economy and many businesses are struggling to cope with the huge challenges. Most are feeling the strain financially. Some are fighting for economic survival. 

Against that background, many firms need urgent legal advice to help them deal with the current crisis, including guidance on where they stand contractually. This will continue in the short to medium term but, if the global financial crisis is a reliable template, it may be several years before this leads to a surge in marquee commercial litigation. At the same time all businesses, including law firms, are having to dramatically change their ways of working, not least a move almost entirely to remote working.

The justice system, too, is adapting to this new reality. Despite the lockdown in most areas of public life, the Lord Chancellor has made clear from the outset the Government’s determination to keep the courts running. Indeed, many have been surprised by what a robust approach has been taken given the stark challenges virtual hearings will face. However, not only does the rule of law require a functioning judicial system but, as a matter of practicality, a pause in all proceedings would mean the system will be burdened with severe backlog and delay once this crisis is behind us. And, after all, justice delayed is (often) justice denied.

That is why the courts have committed to using technology at a level that only a short time ago would have been unthinkable. As the Lord Chief Justice announced on Monday (23 March), hearings requiring the physical presence of parties and their representatives should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety. For the time being, the default position is that hearings will be conducted remotely, using either telephone or video conferencing.

Guidance issued over the weekend on remote hearings in the civil courts states that it will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely, and that some witness cases will also be suitable for remote hearings. Where a remote hearing is not possible, and it is undesirable to proceed with a hearing in court, an adjournment will be necessary. Moreover, hearings may need to be adjourned for other reasons if, for example, people are unavailable due to illness.

As the guidance emphasises, remote hearings should, so far as possible, still be public hearings and the principles of open justice remain paramount – though it also says that in current exceptional circumstances, the impossibility of public access should not normally prevent a remote hearing taking place. Possible means of allowing public access include broadcasting the hearing to an open court and/or allowing journalists to log in to the remote hearing. The Civil Procedure Rules Committee has introduced a new practice direction that provides that, if such measures are not practicable, the court can direct the remote hearing to be held in private ‘where it is necessary to do so to secure the proper administration of justice’.

For documents that need to be filed at court, the court’s online ‘CE-file’ system is used for most pre-trial filings in any event. Bundles for hearings and trials have until now been largely a hard-copy affair, but electronic bundles will obviously be needed for remote hearings.

So are these provisions being implemented in practice? In my firm’s experience, yes, in some cases and a glance at the daily case list shows that our experience is not unique. Some hearings are going ahead, via Skype and other technologies, though it seems others are being adjourned (for example, bankruptcy petitions). The latest update from HMCTS this morning (26 March) states that the High Court and Court of Appeal are only covering urgent work – though I assume that is a temporary situation given indications from the senior judiciary that business should continue where possible.

In the longer term, is this likely to revolutionise the conduct of litigation in English courts? That may be going too far, but the current crisis looks to be a catalyst for the dramatically increased use and acceptance of technology in the courts as in many other areas of life, as we all adapt to the changes thrust upon us.

Damien Byrne Hill is UK and US head of dispute resolution at Herbert Smith Freehills

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