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In this article we explore what impact the COVID-19 pandemic has had on the court system in England and Wales, and the resultant practical issues in the management of road traffic accident litigation.
The response of the courts
Following the implementation of social distancing measures, the message from the Lord Chief Justice was immediately focused on the need for technology to keep the civil justice system operational.
Measures have been put in place to ensure continuity and business as usual where possible, with the introduction of remote audio and video hearings, and a new protocol and Practice Direction (51Y) under the Civil Procedure Rules, to support these.
Whilst the technology that is available is enabling a number of remote hearings to take place, an ever-increasing backlog of cases appears inevitable, and the approach taken by courts has differed. Some courts are conducting all hearings by audio or video. Other courts are only adopting this approach for interim hearings such as applications or Case Management Conferences, whilst some are adjourning the hearings altogether and asking the parties to make written submissions on the areas in dispute before they are re-listed. We have also seen some courts decide to deal with particular hearings on the papers, such as Infant Approval Hearings, Disposal Hearings and MOJ Stage 3 assessment of damages.
The Civil Procedure Rules Committee have not stipulated any specific amendments or indeed how each hearing needs to take place, as such there is no ‘one size fits all’ procedure, which has essentially resulted in local practice directions being made by Designated Civil Judges. There is presently no consistency amongst the courts as whilst the approaches are similar in nature, there are local variations.
The recently announced consolidation of the work of the courts to fewer buildings, whilst understandable, will also inevitably contribute to the backlog. Alongside this, further guidance has been issued setting out the priorities for those remaining courts, which may see insurers face some challenging issues. Applications for setting aside default judgment fit into work that “could” be done and not work that “must” be done, for example.
It is also important to note the recognition from the judiciary that civil court business must be sensitive to other priorities for people’s time, many of which are in critical jobs and will need to be elsewhere.
Practical implications for the management of road traffic accident litigation
Availability of expert evidence
Social distancing measures and the prioritization of the delivery of healthcare over medico-legal work at this critical time, has understandably resulted in the cancellation of medico-legal appointments.
In some instances virtual examinations by telephone or video call, are being considered by experts as an alternative. Whilst this may be suitable for some examinations, careful consideration must be given before accepting or agreeing to this approach. There will undoubtedly be cases where examinations in person are preferable, for example in those where credibility is potentially an issue, or where the injuries or the individual’s circumstances, do not lend themselves to a remote examination.
It must also be remembered that where a video-link interview is undertaken by the expert, a physical examination at a later date may still be required, thereby potentially increasing costs. This issue will need to be considered on a case by case basis, weighing up the risk of increased costs or a report that does not deal with all issues because of the limitations of a virtual/video-link examination, against the potential delay caused by waiting for a further appointment date.
Where a remote/virtual examination is not feasible, cancellations and postponements will inevitably impact upon the life cycle of many cases. A vast increase in the number of medical reports being served once the situation improves is anticipated, as experts and medical agencies try to get on top of the backlog.
Adjournments of trials and other hearings
Delays in relation to expert evidence may, in some cases, mean that it is impossible for the parties to meet the court directions already in place. There has, as of 2 April 2020, been amendment to the Civil Procedure Rules to allow the parties to agree a 56 day extension of directions timetables, rather than the usual 28 days. However in some cases 56 days may still not be enough and parties will need to try and collaborate where possible to agree realistic amended timetables.
There is concern that by the parties agreeing lengthy extensions to Directions, it prevents momentum and will just delay the Trial further. Instead, alternative dispute resolution is being promoted where possible between the parties to ensure that claim shelf life doesn’t unnecessarily increase, and to avoid a vast number of matters needing to be listed for trial by the courts in 2021.
Whilst courts indicate that video-link hearings are possible, there are practical problems with this in terms of the availability of sufficient technology (for both the courts and the individual parties). Regardless of the difficulties, there is likely to be a significant backlog of adjourned hearings with no clear indication as to when the court may be able to re-list these. Some courts are looking at post-September, so a delay of at least 6 months is likely in terms of contentious cases which need to be tried.
Multi-track trials are on the Priority 1 List of matters that must be dealt with, where the parties agree that they are urgent. These cases are then subject to triage by the court. Presumably these hearings would most likely go ahead remotely where possible although there is no clear guidance on this. Further, parties are still required to prepare on the basis that trials are going ahead, with a decision being made only weeks before trial.
Joint settlement meetings
For cases where a joint settlement meeting has been arranged or where one is appropriate, telephone or video conference provides a viable alternative.
Whilst there are likely to be cases that are unavoidably delayed due to difficulties complying with deadlines and adjourned trials, there are still opportunities to progress claims.
Comment
The pandemic has provided further evidence of just how necessary the £1 billion HMCTS court modernisation reform programme (launched in September 2016) is.
The current circumstances take the court system one step closer to a more paperless and remote way of working, with the possibility that more hearings will be conducted in this manner once the pandemic is over. It also seems likely that any teething problems and technical issues that have been encountered, will further shape the reform programme.
United Kingdom