The position as at 20 March 2020
The Civil Justice system is not immune to the restrictions on movement and social interactions. The senior judiciary have recognised that attendances of groups of strangers in public buildings cannot take place for the foreseeable future because of the need for social distancing.
The Lord Chief Justice has directed that the Courts will keep running, and has designated Court staff as key workers. We obviously do not know how the illnesses or isolation of Court staff and the judiciary will impact.
Court users however will need to immediately become used to a new world. There will be delays. We ask our clients and potential clients to bear with us while we all become accustomed to a new and not immediately expected way of conducting litigation. There is nothing that can be done in respect of the changes other than adapting to them.
In particular:
Use of Technology
The judiciary have been directed to avoid face to face hearings so far as that is practical, and instead to immediately bring in video conferencing technology. It appears that this includes live evidence and cross examination, and will presumably therefore need to involve multiple participants from multiple locations.
The senior judiciary consider that it will be business as usual if this is successfully adopted; it would avoid any obvious risk that a party to a claim states that they cannot attend because of isolation.
This has not been successfully done before in the ordinary Courts of this country. Very few practitioners have even tested it.
The Lord Chief Justice has made clear that he expects the legal profession to co-operate with video conferencing technology in the same way that telephone hearings have been facilitated in the past. This means that, if complete isolation of characters in a Court hearing cannot be avoided, a litigant in person might be expected to attend, with a represented party being represented by video link.
We are now rapidly evolving our ability to give all of the necessary co-operation, ensuring that our lawyers have the technology and facilities required to switch immediately to litigation by video conferencing.
Possession Claims
The government has indicated, albeit in ambiguous terms as to implementation so far, that it will take action to prevent the eviction of ‘renters’. 3 points:
First, the Courts are now being directed that block listing (the practice of listing 10 or more cases for a single slot to get them through in 5 minutes) is no longer appropriate because of the need for social distancing. That can only be dealt with by delays.
Secondly, the Courts are directed not to make any possession orders that will risk affecting public health. It is unclear what that means specifically, but it is likely that any defendant to a possession claim will be able to argue that were they to lose their home it would risk public health because of social distancing, or because of the financial consequences. This may of itself virtually curb all possession claims.
Thirdly, the Lord Chief Justice has delegated the regions to direct how the local caseloads will be handed. In the case of the South West, the result of that is that all possession claim hearings are now to be vacated and not to be heard before 19 June 2020 (but that date may be extended if a further Order is made).
Landlords intending to seek possession must bear this in mind. In anything other than a truly exceptional case, it is impossible to go behind the government policy. Residential possession claims are effectively suspended until at least June. It would not be advisable to incur the cost of pursuing them.