How is litigation and arbitration affected by COVID-19?

How is litigation and arbitration affected by COVID-19?

An Employers Guide to Coronavirus

With the UK in a nationwide lockdown, how is this affecting the continued operation of dispute resolution processes?

Here we summarise the responses of the UK courts and international arbitration bodies to COVID-19 as well as looking at the possibility of remote mediations.

UK Courts – still in action

In his statement on 17 March, the Lord Chief Justice highlighted the importance of ensuring that the administration of justice does not grind to a halt as a result of COVID-19, whilst also acknowledging that Her Majesty’s Court Service will not be able to provide ‘business as usual’. The ability to issue new claims, and file papers online via the well-established CE-File system, will hopefully aid a continued smooth running of cases in the Business and Property Courts, Senior Courts Costs Office and Queen’s Bench Division. The counter at the Court of Appeal is closed until further notice, but a ‘drop-box’ service is in place and email communication is encouraged.

In terms of hearings, as the running of courts and tribunals is considered to be an essential public service, the Lord Chief Justice issued guidance, even before the government formally announced the lockdown, to confirm that remote hearings are to be regarded as the default position going forward. Although audio and video technology has always had a presence in the UK’s justice system, never has its role been more important than in ensuring the administration of justice withstands a global pandemic.

An increased number of court staff are being trained on using the court’s currently available technology for telephone and video hearings, which includes BT Meet Me and Skype for Business. Ultimately, the decision as to how a hearing will be conducted is at the discretion of the judge but there are options available.

Working to increase its capacity to keep the courts running smoothly during the lockdown, and other periods of restricted movement in the coming months, is a key priority for Her Majesty’s Court Service. After all, it would not be in the court’s interests to adjourn high numbers of cases with the inevitable backlog that would bring about. The High Court and Court of Appeal, however, are currently only covering urgent work.

A new Practice Direction, 51Y, has also been introduced under the Coronavirus Bill. 51Y intends to clarify when a court may exercise its discretion to conduct hearings remotely in private, and also details the steps it should to take to ensure public access is given to hearings that have been held in private.

International Arbitration

Being inevitably international in nature, it has long been the norm for interim hearings in international arbitration cases to be by way of telephone or video, so remote hearings are par for the course here.

Looking at whether new claims can be commenced, if your agreement provides for an institutional arbitration, then you would need to check what that particular institution is doing, but based on the LCIA, ICC and CIArb, they remain open for business, albeit their staff too have moved to remote working. If your agreement provides for ad hoc arbitration, then we anticipate arbitrators will still be willing to take on cases on a remote working basis.

Mediation

By taking advantage of audio and video technology, mediators are also able to continue providing their services, albeit with each individual participant engaging in the mediation session from their own home.

In short, disputes continue to be resolved across the globe and Stevens & Bolton is available to support you through this difficult time.

Contact our experts for further advice

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