Coronavirus Bill: Dispute Resolution Implications

1. INTRODUCTION

1.1 On 19 March, the UK Government published its Coronavirus Bill¹ setting out a raft of emergency powers to manage the spread of the COVID-19 virus. 

1.2 The draft Bill, which was passed through the House of Commons on Monday 23 March, will have a time limit, meaning that it will apply only for a temporary period. The current proposal is for a time limit of two years with a debate and vote every six months to ensure its continuation is necessary.

1.3 Health secretary, Matt Hancock, has said that the legislation will be used only in relation to fighting the COVID-19 outbreak and that it would remain in force only for as long as the virus poses a threat to the UK, after which the powers it provides will be revoked. 

1.4 The Bill contains a raft of emergency powers in five key areas, one of which is to ease the burden on frontline staff. The Courts and tribunals: use of video and audio technology provisions ² in the Bill are intended to reduce delays in the administration of justice and expand the availability of audio and video technology in courts and tribunals. 

1.5 In addition to the Bill, a range of other measures are being considered or implemented as litigators, courts, tribunals and other relevant bodies try to adapt to the crisis. At present:

1. HMCTS has confirmed that its objective is to undertake as many hearings as possible using audio and video technology, so as to ensure that justice does not grind to a halt;
2. the judiciary has stated that parties must cooperate to undertake hearings remotely, instead of defaulting to a postponement of proceedings. This approach has been endorsed and adopted in the recent case National Bank of Kazakhstan and the Republic of Kazakhstan v Bank of New York Mellon, Anatolie Stati and others. In this regard, the civil courts are keen to prove that England and Wales remains a key centre for resolving disputes during this crisis; 
3. a two to three month moratorium for litigation deadlines is being considered by the Law Society and HMCTS, which could see limitation periods extended, among other things; and
4. the Lord Chief Justice³ has announced all jury trials in England and Wales are to be suspended.

1.6 This briefing explores the changes being implemented as a result of the Bill, as well as other measures that will impact on dispute resolution generally as a result of the COVID-19 pandemic. 

2. HMCTS PRIORITIES DURING THE COVID-19 OUTBREAK

2.1 While HM Courts & Tribunals Service ("HMCTS") is taking steps to minimise the impact of the COVID-19 outbreak on the courts, it has warned that critical business priorities will shape the listing and management of hearings over the coming weeks.⁴

2.2 In agreement with senior judiciary, HMCTS has confirmed that it will prioritise the following cases during the crisis:

1. Urgent civil and family work, including applications to suspend possession warrants, injunctions and orders dealing with issues of care, abduction, emergency protection and debt, as well as injunction breaches and Court of Protection matters concerning vulnerable people.
2. Custody, detention and bail matters and urgent applications involving terrorism, domestic violence or search warrants. Certain civil proceedings in magistrates’ courts will also be regarded as urgent.
3. Hearings related to the deprivation of liberty, public safety, and individuals' rights and welfare.

3. USE OF AUDIO AND VIDEO TECHNOLOGY

3.1 The Bill includes provisions to expand the availability of live links in criminal proceedings and other criminal hearings, including wholly video and/or audio hearings in some circumstances. This would allow defendants who are out on bail (rather than remanded in custody), victims and witnesses to appear via audio or video link instead of in person. 

3.2 The Bill's provisions also allow for Magistrates' Court appeals to take place via phone or video in circumstances whereby an individual who is potentially infectious with COVID-19 is appealing against certain requirements or restrictions on their movement due to quarantine rules. This would allow for the appeal to be heard, without the individual having to breach their quarantine to attend the hearing. The new legislation will temporarily modify the Magistrates' Court Act 1980.

3.3 To continue to enable the principle of open justice, the Bill also sets out measures to allow public participation in proceedings carried out via video or audio link. By amending the Courts Act 2003, the courts will be able to decide that proceedings in the Court of Appeal, High Court, Crown Court, County Court, Family Court and Magistrates' Court may be heard wholly by video or audio. The First-Tier Tribunal and the Upper Tribunal will have the same powers through modifications to the Tribunal, Courts and Enforcement Act 2007. These changes will allow hearings to be recorded and broadcast so that members of the public are able to watch or hear the proceedings without attending in person. 

3.4 By allowing the courts to remain open in this way without the need for parties to attend in person, the Bill will give judges more scope to avoid adjourning hearings and creating a backlog resulting in administrative delay. 

3.5 Currently, the provisions, other than for public participation, relate solely to the criminal courts. However, civil court guidance on remote hearings has been published.⁵

3.6 In regards to cases that have already been listed, the court may direct that such hearings be conducted via audio or video. This will mean parties do not need to attend the court in person and will instead dial in remotely to participate in the hearing. Evidence will be given over the phone or, more likely, via video link, which has in the past come under some scrutiny as to whether it impacts on the reliability or credibility of the evidence. It will also mean that the hearing may be broadcast with members of the public able to dial in and watch or listen. 

4. WHAT ELSE IS BEING DONE

4.1 Certain courts have issued protocols providing detailed guidance as to the conduct of remote hearings. These protocols confirm that the objective is to undertake as many hearings as possible, so as to ensure that the administration of justice does not grind to a halt.  

4.2 The use of remote hearings in the current climate has been endorsed by the courts, with Mr Justice Teare stating that "[t]he court has to be optimistic rather than hesitant. It is a duty of all the parties to seek to cooperate, to ensure that a remote hearing is possible." He noted that "The courts exist to resolve disputes and as I have noted, the guidance given by the Lord Chief Justice is very clear. The default position now in all jurisdictions is that hearings must be conducted with one, more than one, or all parties attending remotely."⁶  

4.3 The Lord Chief Justice has announced that all jury trials in England and Wales are to be suspended. In a statement published on 23 March, the Lord Chief Justice confirmed that no new trials will start and ongoing trials will be paused while arrangements are put in place to allow them to continue safely. The announcement follows a previous statement from the Lord Chief Justice, which confirmed that cases listed to start before the end of April for more than three days will be adjourned.

4.4 HMCTS has published guidance⁷ regarding applications to adjourn civil and family proceedings due to the COVID-19 outbreak. Among other things, the guidance notes that "the decision whether to adjourn will remain with the judge who will consider whether the hearing could take place using audio or video" and urges parties to reach a compromise, before resorting to an adjournment. Where such applications are made, the guidance confirms that the fee may be waived. 

4.5 The Law Society of England and Wales has indicated that it is discussing with HMCTS the possibility of extending or suspending litigation deadlines. If this change were to be put in place, it would mean that deadlines for filing court documents, including particulars of claim, defences and replies, among others, could be pushed back. The current proposal is for a two to three month extension. It would also mean that proceedings may still be commenced for matters in which the statutory limitation period is approaching and which would otherwise be out of time. 

4.6 If a moratorium period is granted by the Law Society, and the COVID-19 crisis continues, then alternative forms of dispute resolution, such as mediation, will inevitably become more prominent for commercial disputes. However, until such measures are agreed, the Law Society has advised that such matters should be dealt with in the normal way.⁸

¹ https://publications.parliament.uk/pa/bills/cbill/58-01/0122/20122.pdf 

² Paragraphs 51-55 and Schedules 22-25

³ Review of court arrangements due to COVID-19, message from the Lord Chief Justice (https://www.judiciary.uk/announcements/review-of-court-arrangements-due-to-covid-19-message-from-the-lord-chief-justice/) 

⁴ HMCTS priorities during the coronavirus outbreak (https://www.gov.uk/guidance/hmcts-priorities-during-coronavirus-outbreak)

⁵ Protocol Regarding Remote Hearings (https://www.judiciary.uk/wp-content/uploads/2020/03/Civil-court-guidance-on-how-to-conduct-remote-hearings.pdf)

⁶ National Bank of Kazakhstan and the Republic of Kazakhstan v Bank of New York Mellon, Anatolie Stati and others (see https://www.law360.com/articles/1255010) 

⁷ Applications to adjourn civil and family hearings because of coronavirus (COVID-19) (https://www.gov.uk/guidance/applications-to-adjourn-civil-and-family-hearings-because-of-coronavirus-covid-19) 

⁸ See 'Advice of litigators: What should I do if I have court deadline coming up?' (https://www.lawsociety.org.uk/support-services/advice/articles/coronavirus-advice-and-updates/) 

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Please contact Anupreet Amole, Neil Micklethwaite, Neill Shrimpton, Nick Tse, Jane Colston, Peter Bibby, Ravi Nayer, Ravinder Thukral, Olga Bischof, Chris Toms, Chloe Pawson-Pounds, and Aisling O'Sullivan with any queries regarding this Client Alert.

The views expressed herein are solely the views of the authors and do not represent the views of Brown Rudnick LLP, those parties represented by the authors, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article may be incomplete and is not intended to constitute legal advice by the authors or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.