If there was a bigger surprise than the speed and impact with which the pandemic hit us, it was the adaptability of the commercial courts. Who would have thought that our traditional court system would pivot so easily to a world of virtual hearings and trials? Of course, like a swan looking serene on the surface but paddling furiously underneath, huge efforts are being expended by all court users to keep the train on the tracks. And court users are human too, grappling with remote working, home schooling and self-isolation. It is, therefore, not surprising that COVID is cited as a reason for lawyers and litigants struggling to comply with court deadlines. However, from the early days of the pandemic, the courts have been reluctant to allow court users latitude based on the ‘COVID excuse’.
The beginning of the tale
From the outset, the guidance from the Lord Chief Justice was directed to the importance of the wheels of justice continuing to turn. On 19 March 2020, before the first lockdown was imposed, he stated (with gloomy but accurate prescience) that ‘this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months... Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage’.
Practice Direction 51ZA, implemented on 2 April 2020, allowed parties to agree longer extensions of time between themselves. However, it also made it clear that the court would weigh the impact of the pandemic against ‘the proper administration of justice’. It ceased to have effect from 30 October 2020 and has not been renewed.
The tone was set in April 2020 in a dispute between Heineken and AB InBev ( EWHC 892 (Pat)). AB InBev asked for an extension of time to file reply evidence and a delay to the trial start date because of the difficulties caused by the pandemic. In particular, lawyers were grappling with remote working restrictions and team members either becoming ill with COVID or being in isolation. The judge granted a modest extension of time for reply evidence to take account of the general disruption. However, he was unimpressed by the arguments as to the impact of illness and isolation, pointing to the overall size of the legal team and the fact that ‘a degree of self-isolation can increase productivity’. He further noted the efforts being made by ‘less well-remunerated compatriots’ of lawyers, working long hours in inhospitable conditions and putting themselves and their families at risk in saving lives.
14 months in
This approach has continued and, if anything, hardened over the last year. At the start of the third lockdown, the Lord Chief Justice noted the success of the courts in upholding the rule of law and emphasised that all in the legal profession would continue to meet the difficulties. This robust approach has been adopted by the judiciary and in particular, we have seen:
- No latitude for solicitors without pandemic proof systems for compliance with time limits. Thus, in Boxwood Leisure Ltd v Gleeson Construction Services Ltd  EWHC 947 (TCC), the court refused to validate service of a claim form mistakenly served four days late.
- Little sympathy for illness of lawyers leading to delay in complying with deadlines—where extensions have been granted, they tend to come with an adverse costs order for the party seeking them.
- A careful look at evidence from parties who claim to have been ill with COVID and therefore unable to participate in part of the litigation process. In some cases, relief from sanctions or adjournments have been granted, particularly where the evidence adduced in support is detailed and sets out both the fact of the illness and its impact on compliance with procedural steps. The mere mention of COVID does not equal the relief an applicant seeks. In Ashford Borough Council and other v Wilson  EWHC 419 (QB), the court refused a second application to adjourn a trial because the applicant had not provided any medical evidence supporting his claim to have been exposed to COVID. Further, in Varma v Atkinson and another  EWHC 1868 (Ch), a positive COVID test did not secure an adjournment for a contemnor’s sentencing hearing.
- Evidence in final hearings being given virtually is now normal, and the court gives short shrift to any party who tries to argue that it should be otherwise.
Where an aspect of the pandemic has had a real and unavoidable impact on parties’ obligations, it seems harsh to penalise them. However, the court and opponents are very alive to COVID being used as an excuse for non-compliance. If you do need to deploy it, you should consider the arguments that may be used against you and try to defuse them as comprehensively as you can. Evidence in support of your application should be clear and detailed, explaining the event that has occurred and why its impact could not have been mitigated in any way. It may also be wise to warn clients to anticipate adverse costs orders even if they get what they need in terms of relief.
In addition, and in a perhaps more positive vein, this pandemic has illustrated the need for lawyers to be project managers as well as legal experts; a skill that will stand us all in good stead once the last couple of years are a (thankfully) distant memory.
This article was first published in New Law Journal, see here.