The English Courts have adapted remarkably quickly to the COVID-19 pandemic and the knock-on effect it has had on well-established Court procedures. As we reported in an earlier article, just days prior to the UK lockdown, the Lord Chief Justice released a statement in which he emphasised that, as a default, hearings should be conducted remotely until further notice in order to sustain the prompt administration of justice throughout the pandemic.
Procedural developments – hearing and extensions of time
The Courts have produced various guidance notes on video conferencing and electronic bundling in order to bring litigants up to speed with new Court procedures governing the conduct of remote hearings. As of 24 April 2020, approximately 2,800 hearings a day were being conducted remotely, being 90% of all hearings – around one third being video hearings and two thirds audio-only.
Procedurally, the Courts have taken a relatively proactive approach by introducing new rules on extensions of time. Ordinarily, parties can agree to extend the Court deadlines for a period of up to 28 days without having to seek permission from the Courts. In recognising the impact that new working practices will have on both clients and practitioners, the Court introduced temporary new rules that enable parties to agree extensions of time of up to 56 days without the need for Court approval. These measures afford litigants a sensible level of leeway while all parties adapt to working remotely and seem to reflect the Courts’ approach to dealing with cases proportionately and encouraging party co-operation, as required by the Overriding Objective.
Emerging trends in English case law
While these procedural developments have shown that the Courts are willing to be flexible at the early stages of proceedings, recent case law has demonstrated that they will take a far more robust approach where any proposed delay would impact upon a hearing or trial date. As noted by, Daniel Alexander QC sitting as a High Court Judge in Heineken Supply Chain BV v Anheuser-Busch Inbev SA  EWHC 892 (Pat), where achievable, “the wheels of justice should keep turning at their pre-crisis rate”.
For instance, in the recent case of Blackfriars Ltd, RE  EWHC 845 (Ch), the Deputy High Court Judge refused an application to adjourn a trial made on the basis of the difficulties caused by coronavirus. The Joint Liquidators’ argued that to proceed with the trial would be inconsistent with the Prime Minister’s instructions to stay at home and that the technological challenge posed by a five-week trial would be too great. These reasons were rejected by the Deputy High Court Judge who made it clear that “the legislature is sending a very clear message that it expects the Courts to continue to function so far as they are able to do safely by means if the increased use of technology to facilitate trials”.
In Re Smith Technologies (unreported 26 March 2020), HHJ Eyre QC remarked that “lawyers can be expected to go further than they might otherwise be expected to go in normal circumstances and particularly is this so where there is a deadline to be met (and even more so when failing to meet the deadline will jeopardise a trial date)”. Thus making it clear that Courts will expect lawyers to utilise new and innovative methods of working and acquire the skills needed for the effective use of technology during these unprecedented times.
In Heineken Supply Chain BV v Anheuser-Busch Inbev SA  EWHC 892 (Pat), the Defendants sought an extension of time for reply evidence and the consequential delay of the start of trial, partly relying on the disruption caused by the lockdown and the fact that one member of the Defendants’ solicitors’ team suffered COVID-19 symptoms. In the view of the judge, the absence of one member of a team of four solicitors simply did not justify the requested extension, observing that “while lawyers are preparing expert evidence, some of their often much less well-remunerated compatriots may be putting themselves and their families at risk in saving lives, working long hours in inhospitable conditions”. The extension sought was denied, although a shorter one that would not significantly impact the trial was granted.
In SC v University Hospital Southampton NHS Foundation Trust  EWHC 1445 (QB), the High Court refused the defendant's application to adjourn the trial of a clinical negligence claim, which was made on the basis that a remote hearing would not be fair. The Court held that, provided a hearing could take place fairly, the hearing should not be adjourned but rather a socially distanced trial could be held in Court the following week. A remote hearing would not be unfair, but it would be "undesirable" in this particular case.
The impact of the government furlough scheme has also been the subject of judicial consideration. In the recent case of Fottles v Bourne Leisure, Nottingham County Court. HHJ Godsmark QC did not permit an adjournment of the trial following a request for the same by the defendant on the basis that its witnesses were furloughed employees. HHJ Godsmark QC held that attending court to give evidence for an employer was not “work” in general terms and certainly not work within the meaning of the furlough scheme as it did not involve anything which made the employer money or provided services in breach of that scheme. He clarified that “Participating as a witness (for employer or anyone else) in the justice system is not a breach of the terms of the furlough scheme.”
In light of the above, it is clear that the Court will expect a party making an application for an extension of time due to the pandemic to provide specific reasons for the proposed delay (general inconvenience is unlikely to be a sufficient reason for extending a Court deadline, especially if that extension impacts any trial date) and parties should be under no illusion that the Courts both expect and require parties to go the extra mile to overcome the challenges posed by the COVID-19 pandemic.
What does this mean for the future?
The English Courts have, on the whole, been traditionally reluctant to embrace technology. However recent events have demonstrated that, when required to, they can adapt remarkably well to new ways of working. This begs the question as to whether the judiciary will elect to adopt or abandon altogether their new found working practices in the aftermath of the pandemic. Given the generally positive reports of such hearings thus far, we suspect that, while remote hearings may not become the “new norm” post-lockdown, certainly at least for interim hearings, they will likely become a far more attractive proposition than they once were and could lead to significant improvements in Court flexibility and cost savings for clients.
Given that the technology required to facilitate remote Court hearings on a large scale exists, it follows that the same technology can and has already been applied to remote mediations and arbitrations, thus removing (or at least reducing) travel and venue expenses, with consequent cost savings for the parties involved as well as speeding up the processes.