Personal injury hearings during the COVID-19 pandemic - the new normal
This article was co-authored by James Barnett, Litigation Assistant at Kennedys, Chelmsford and William Hamilton, Barrister, Nine St John Street Chambers.
As this is a fast moving topic, please note that this article is current as at 23/07/2020. For further information please contact Jennifer Harris.
The COVID-19 pandemic has presented one of the greatest challenges in a generation. Social distancing measures introduced by the UK government have had a considerable impact on everyday life. The lockdown has affected all areas of civil litigation but the impact has been most keenly felt by those with impending hearing dates.
This article examines the impact of the pandemic on personal injury hearings and outlines the authors’ recent experiences following the resumption of in person trials.
Following the announcement of the lockdown on 23 March 2020, civil trials were adjourned en masse with parties facing the prospect of cases being relisted in mid-Autumn at the earliest. With the prospect of an ever-increasing backlog of work, the court administration and practitioners have had to work creatively to enable cases to proceed to trial within the constraints posed by the lockdown. There has been a significant increase in the hearing of matters remotely by telephone and video technology.
Small claims track and Ministry of Justice portal matters usually involve straightforward issues with limited documentary and witness evidence. As such, many of these matters are currently being heard remotely.
However, fast track and multi-track matters often involve more complex issues with consideration of extensive documentary, expert and lay witness evidence. One example is where allegations of fundamental dishonesty are raised. The challenge posed by the pandemic is whether such cases can be fairly tried remotely or, if not, how they can safely proceed in open court in line with the governmental guidance on social distancing.
The resumption of in person trials
Following the recent easing of the lockdown, the court administration has taken the first tentative steps towards the gradual resumption of in person trials. One of the first fast track personal injury trials to be heard in person at the Manchester Civil Justice Centre took place on 9 June 2020 and was attended by William Hamilton, Barrister of Nine St John Street Chambers in Manchester. The experience of the procedures which have been implemented at that court centre will provide those due to attend hearings during the remainder of the pandemic with an insight into what to expect.
- Attendees are only allowed into the building one person at a time following invitation by the court staff.
- Upon entry they are then asked whether they are currently experiencing any symptoms related to COVID-19 and the reason for their attendance before being asked to apply alcohol hand santizer.
- Once inside, the standard measures we are all now familiar with in respect of social distancing are in effect. The two metre rule is enforced, only one person is permitted to use a lift at a time and regular cleaning is carried out.
- The number of courtrooms available for in person hearings has been drastically reduced and the block listing of trials is currently not feasible.
- Entry into the court room is on a person-by-person basis with attendees being instructed to re-apply alcohol hand santizer. Each attendee is allocated a specific seat within the courtroom.
- Before giving evidence in the witness box, witnesses are provided with disposable gloves in order to handle the trial bundle. Upon completion of the evidence of each witness, the courtroom is cleared and the witness box is cleaned.
The court administration is placing an emphasis on limiting the number of people attending court at any one time and parties are expected to provide the court with information in relation to the expected number of attendees. Social distancing measures have led to limits being placed on the capacity of courtrooms to accommodate attendees. Conferences with Counsel prior to the hearing are now more challenging with only two people being permitted to use a conference room at any one time.
In cases involving a single witness for each party, these restrictions are unlikely to pose any real practical issues. However, there will be challenges in cases requiring interpreters or involving multiple witnesses. In such cases, serious consideration should be given to conferences being conducted using video technology in advance of the trial date, not least because it will be useful for anxious witnesses to be appraised of what to expect when they attend court during the pandemic. Practitioners will need to consider whether there is a real need for the attendance of witnesses whose evidence is of subsidiary importance. ‘Hybrid’ hearings are another innovation which may provide a solution, particularly in cases involving vulnerable witnesses who are shielding – these are hearings whereby certain parties and/or their legal representatives attend court in person while others attend remotely.
There has been a rapid rise in the use of electronic bundles. This trend will no doubt continue into the future given the increase in hearings being conducted remotely. Paper bundles are still being used for in person hearings. However, practitioners attending such hearings during the pandemic would be well advised to ensure that documentation is available electronically should the need arise given the potential for paper documents to become contaminated.
The social distancing measures necessarily implemented at court will inevitably delay aspects of the trial process. As a result, it is anticipated that the judiciary is likely to be much more rigorous in setting and enforcing a timetable for trial to ensure that cases are dealt with efficiently. As a result, we expect that parties will need to focus upon the primary areas of their dispute as the court is unlikely to indulge in time being wasted in the pursuit of peripheral or bad points.
It is to be hoped that the new measures implemented in court centres like the Manchester Civil Justice Centre will give those attending court during the pandemic the confidence that they can do so safely. It must be borne in mind that there is not a blanket policy for in person hearings in all court centres and procedures are likely to evolve in line with future governmental guidance. Given the ongoing capacity issues it is likely that we will see a significant number of trials being adjourned for some time to come. However, it is encouraging to see how quickly judges, practitioners and litigants have adapted to using video technology to ensure that litigation does not grind to a complete halt. Whether the hearing of personal injury trials remotely becomes the new normal after the pandemic remains to be seen.