The unique challenges posed by the Covid-19 pandemic have seen English Courts adapt quickly, and generally effectively, according to a new article from Hatty Sumption (Partner) and Alexander George at legal firm Clyde and Co.
The writers observed that events which increased market volatility and counterparty risk tended also to drive a spike in litigation, often on an urgent basis, with parties taking steps to preserve and enforce legal remedies.
The Covid-19 pandemic had proved to be no exception, and had seen a sharp rise in disputes reaching – or in the process of reaching – the English Courts.
The unique difference in the current crisis is that there has been a concomitant disruption to systems of justice, at precisely the time that they are being subject to increased demand from businesses across the globe.
“With restrictions on our daily lives seeming likely to last for some time yet, one of the unique challenges posed by Covid-19 is whether it remains possible to turn to the Courts for effective redress”, Sumption and George wrote..
New rules for a new normal
The good news was that the English Courts were adapting quickly to keep the wheels of justice turning.
In response to the disruption affecting parties to litigation caused by Covid-19, the Civil Procedure Rules Committee published two new Practice Directions, 51Y and 51ZA, which amend the CPR with the aim of providing greater flexibility in English Court proceedings.
New protocols have also been published by the different specialist courts, including the Business and Property Courts and the Queen’s Bench Division, under whose remit most commercial disputes fall.
The English Courts have shown themselves committed to minimizing disruption, although litigation might look and feel a bit different.
The key changes for litigants to consider are:
- So far as possible, it is business as usual. New claims can be issued in the Commercial Court electronically and are still being processed quickly and efficiently.
- Where a claim is already in proceedings, the parties can benefit from more flexibility to agree to extend procedural deadlines than was afforded under the pre-Covid regime.
- If an extension requires approval from the Court, the judge will be expected take into account the limitations imposed by coronavirus restrictions, but will not allow unnecessary delay, and parties can expect to be granted only the minimum extension possible.
- Increased use is being made of remote telephone and video hearings, and the logistics of remote hearings must be considered as far ahead as possible.
- Before ordering a remote hearing, litigants can expect the Court to consider rigorously whether the dispute can be fairly resolved by a remote hearing, but it appears that there will not be a bias in favour of postponing hearings until they can be held live.
- New technology can be expected to be used to make remote hearings run as smoothly as possible, including increased use of e-bundles.
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