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Civil Courts Covid-19 Update.

Legal Update by Emily Slocombe (Pupil).

In recent weeks the ways that courts have been running has changed dramatically. This update intends to provide an overview of the current situation in the civil courts in the North. 

Status of the courts:

HM Court and Tribunal Service (“HMCTS”) have created a court tracker. The work of the courts and tribunals have been consolidated into fewer buildings and the tracker is a quick way to see what courts are open to the public, staffed but not open to the public or closed.  

In the North the following courts are fully open: Leeds, Doncaster, Sheffield, Hull, Barrow in Furness, Carlisle, Liverpool CJC, Manchester, Newcastle, Preston, South Tyneside, Stockport, Warrington and Wigan. It will be in these open courts where any face to face hearings are conducted. 

Skipton, Barnsley, Berwick upon Tweed, Darlington and Leyland are suspended Courts. 

Listing priorities:

HMCTS have also created a table of listing priorities of for the County Court including work which must be done (priority 1) and work which could be done (priority 2) as set out below. However, many areas have created their own guidance.

Civil work in the Queen’s Bench Division and District Registries are being dealt with on a case by case basis and are excluded from the below table. 

 

Priority 1 – work which must be done

 

Priority 2 – work which could be done

 

 

Infant and protected party approvals.

Freezing orders.

 

 

CPR 21 approvals.

Injunctions and return days for ex parte injunctions.

 

 

Applications for interim payments.

Hearings with a real time element such as post-termination employment restrictions.

 

 

Stage 3 assessment of damages.

Production of persons in custody following Power of Arrest detentions.

 

 

Enforcement of trading contracts.

Applications to displace under S29 MHA.

 

Applications or hearing pursuant to the Insolvency Act 1986 which concern the survival of a business or the solvency of a business or individual.

 

Homelessness Applications.

 

Applications for summary judgment of a specified sum.

 

Enforcement work which does not involve bailiffs.

 

Applications to set aside judgment in default.

 

Any applications in cases listed for trial in the next three months.

 

 

Applications for security for costs.

Any application where there is a substantial hearing listed in the next month.

 

 

All small claims/fast track trials which are urgent, subject to triage.

All Multi-Track hearing where parties agree that it is urgent, subject to triage.

 

 

Preliminary assessment of costs.

Appeals in all the above cases.

 

Appeals in all the above cases.

 

Key workers:

When the government first mentioned ‘key workers’ and schools closing for children of non-key workers many barristers were eager to find out whether they were a key worker. The Chair of the Bar, Amanda Pinto QC, said “Barristers should decide for themselves whether they fall into the category of key worker, and if so, whether they can nevertheless keep their children at home’. She went on to say “it might be that [barristers] don’t fall into the category of key worker all the time, but there comes a point when [they] do, because of a change of workload”. This perhaps didn’t give the certainty that many barristers were looking for but emphasises the importance of everyone continuing to review their situation as workloads change.   

Coronavirus Act 2020:

The Coronavirus Act 2020, which came commenced on 25/03/2020, has obvious relevance to civil courts and tribunals though it has a primary focus on the criminal courts.  Schedule 25 applies to criminal, civil and family proceedings.  

Schedule 25 85A states that if the court directs that proceedings are to be conducted wholly by video or audio, then the court can direct that the proceedings are broadcast for the members of the public and that recordings or proceedings are made so that the court has a record of proceedings.  In practice, it is unlikely that many hearings will be directed to be broadcast. 

Schedule 25 Coronavirus Act also includes that it is an offence to separately record or transmit a hearing which is being broadcast in accordance with Schedule 25 85A above, or via live link. 

Civil Procedure Rules:

Practice Direction 51Y Video or Audio Hearings: 

This practice direction came into effect on 25/03/2020 and will cease to have effect on 30/10/2020. It provides that where the court directs that proceedings are to be conducted remotely the hearing shall be broadcast in the court building where possible.  If it is not possible the court may direct that the hearing takes place in private.  

Practice Direction 51Z Stay of Possession Proceedings: 

This practice direction came into effect on 27/03/2020 and will cease to have effect on 30/10/2020. The implication of this practice direction is that all possession proceedings brought under CPR 55 and all proceedings to enforce an order for possession by warrant or writ of possession are stayed for 90 days from 27/03/2020. 

Practice Direction 51ZA Extension of Time limits: 

This practice direction came into effect on 02/04/2020 and will cease to have effect on 30/10/2020. It allows parties to agree an extension of up to 56 days without formally notifying the courts so long as it does not put a hearing date at risk. This has doubled the amount of time that parties can agree to extend a time limit by. Any extension of greater than 56 days needs to be agreed by the courts. 

This practice direction also amends practice direction 51Y making it clear that if a person wishes to listen to or view a recording of a hearing, they may do so by asking, but they are not required to make a formal application. 

Guidance for North and West Yorkshire and Leeds District Registry from DCJ Gosnell 

Interim hearings will mostly, if not completely, be conducted remotely. However, all civil interim hearings have been vacated until 7th April 2020 so that a ‘firewall’ can be created to enable court staff to plan. 

Multi-track trialsmay be conducted on paper or remotely. The Court is prepared to consider face to face hearings where social distancing can be complied with and only in very limited cases. 

Fast Track trials can take place remotely if the parties agree. If the parties agree that a remote hearing is not suitable then the trial will be adjourned until it is safe to have a trial in person. 

Small Claims Track trials were initially vacated, but from 1st May 2020 where parties consent and are capable of taking part the trials will be listed. Parties will also have the option for the matter to be considered on paper. If a remote hearing cannot be conducted and parties do not agree for the matter to be considered on paper the trial will be adjourned until face to face hearings are possible and safe. 

Stage 3 hearings will either go ahead remotely or on paper. As they are usually block listed, they will be unlocked to create individual appointments.

Appeals will be dealt with by remote hearings. 

Injunctions and committal applications will still be heard. Some applications for injunctions will be heard remotely. Committals will either be adjourned or conducted in a large courtroom in Leeds with social distancing if the hearing is urgent. 

Possession Claims and enforcement proceedings have been stayed for 90 days and all blocklists vacated. The court will continue to hear applications to suspend different types of enforcement proceedings and will try to hear them remotely. 

HHJ has also created a list of requirements for bundles in remote hearings. These are:

-       A hyperlinked, paginated, electronic court bundle linked to documents essential for the court to determine the issues on the day;

-       A single agreed case summary and list of issues;

-       A draft order in word format;

-       In CCMC’s or any applications to amend a cost budget, a copy of the relevant Precedent H in an editable excel format;

-       Any cost schedule to be relied upon;

-       A Skelton argument or witness submissions which shall be limited to 6 single pages types, double spaced, font size 12 and Times New Roman; and

-       A bundle of authorities relied upon. 

Guidance for South Yorkshire from DCJ Robinson. 

On 7th April 2020 DCJ Robinson updated his listing procedure for civil court users. He starts it by stating that wherever possible hearings will take place, with the default being they will be heard remotely, and only in exceptional circumstances will a hearing be conducted in person. 

Electronic bundles must be sent to the relevant court, as hearings will not be conducted using paper files. 

Fast Track and Multi-track trials will be triaged on a case by case basis. If the court decides to adjourn the hearing, parties can make proposals of how the hearing can be conducted remotely. 

Consideration as to whether small claims can be dealt with on paper will be given. 

Guidance for Northumbria, Durham, Darlington and Teeside from DCJ Freedman and DCJ Gargan. 

Small claims and fast track hearings are vacated until 9th April 2020. Hearings from the 14th April 2020 onwards will be kept under review and notified week commencing 6th April 2020 whether they will go ahead. However, parties can apply for their trials to be re-instated on the basis that they can be heard remotely. 

Short hearings (not BPC), other than trials, will be conducted via telephone. Where practicable a small e-bundle should be filled with the court by midday the day before the hearing and the judge hearing the matter emailed to inform them of the bundle. If parties consider a telephone hearing inappropriate they must contact the court at least 2 clear days before the hearing to give reasons. 

Multi-track matters in the lead up to trial. Parties can extend, by consent, any step in the timetable by 90 days and they need not inform the court if the trial date is not affected. If the trial date is affected for any reason and the parties agree that an extension is needed then a letter should be sent to the court with a draft order attached proposing a new timetable, new trial window and providing availability. If the trial cannot be met and a draft order cannot be submitted, the parties are at liberty to agree a stay and notify the court. If no agreement can be reached the ‘applying’ party must, by letter or email, request a telephone hearing indicating whether the matter is urgent, a time estimate and providing an e-bundle. 

Possession proceedings are all vacated until 19th June 2020 and will then be relisted at the first available date. 

Committals will still go ahead in person. 

Injunction applications will be prioritised and heard urgently by telephone or other electronic means. Personal service for urgent civil injunctions will be dispensed with and substituted for service by delivery through the letterbox of the last known address, text and/or another form of electronic communication will usually be made. 

Guidance for the Humber Courts from DCJ Richardson.

Small claims and Fast track trialshave been vacated up to and including 17th April 2020. Orders were sent to parties to ask them to try to agree or narrow issues and decide whether the remaining issues can be dealt with via paper or telephone hearing. Fast track hearings could also be dealt with by way of video link. Trials after 20th April 2020 remain in the list but orders are being sent to parties to ask to them agree or narrow issues. 

Short hearings require one party (usually the Applicant/Claimant) to file an electronic bundle by midday the day before the hearing. If no e-bundle is filled, then the hearing may be adjourned.  

Applications for return of goods and third party debt orders will be dealt with on paper, or by telephone if requested. 

Creditor’s bankruptcy petitions will be heard by telephone. The petitioning creditor must send an e-bundle no later than 5 pm the day before the hearing. If the debtor attends and the petition is disputed, it will be transferred to the BPC in Leeds. 

Applications by enforcement agents for certificates or renewed certificates will be heard by telephone. The Applicant must send the certificate and a colour photograph to the court by post to arrive the working day before the application listed and attend the application hearing via telephone. 

Attachment of earnings orders will be dealt with in box work if the District Judge has sufficient information to make an order on paper. Applications that require service by the Bailiffs or attendance at court will be considered once it is safe to attend court. Any debtor wishing a variation or stay of a suspended attachment of earnings order due to being adversely affected by the current public health crisis will need to make a formal application to the court. There will be no application fee. 

Infant approvals, and orders to attend for questioning will be adjourned until it is safe to attend court. 

Approval for a protected party will be heard by telephone with an e-bundle. 

Applications for payment out of court of funds help for a child under 18 will be dealt with on paper if there is sufficient information. If not, the hearing will be listed once it is safe to hold a face to face hearing. 

Possession hearings are suspended until 25th June 2020. It does not apply to injunction proceedings. Any applications for injunctions are to be listed by phone. 

Committals will require personal attendance at court. 

Injunctions will be prioritised and heard urgently by telephone. Personal service will be dispensed with. 

CCMC’s will take place via telephone. The directions in the order must be strictly adhered to regarding the filing of documents. The Claimant must also file an e-bundle with pleading and other documents the court will need when considering directions and proportionality. 

Variation of timetables in Multi-track cases will be dealt with in accordance with PD51. 

Multi-track trials listed in April or May 2020 will be listed for a directions hearing via telephone for the court to determine whether the matter can be dealt with remotely. 

These uncertain terms came upon us very quickly and, therefore, it is likely to take some time for a new regime to be established. 

We are now over a week into lockdown.  It is hoped that a new temporary form of normality and function is being mapped out by the courts and the Designated Civil Judges on circuit.  All the guidance above indicates that there should, hopefully, be more hearings going ahead in future and increased use of technology enabling that to take place.

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