On 19 March 2020 the Lord Chief Justice (LCJ) sent guidance to County Court judges on how the work of the court is to be carried out during these unprecedented times. He expressed that the court has "an obligation to continue with the work as a vital public service…but as I have said before, it will not be business as usual".
A summary of the LCJ's guidance is as follows:
As this situation is so fast moving it is possible the above guidance may change with very short notice.
Social distancing
Local practices need to take account of variations in court facilities, and local courts are best placed to consider what arrangements there are to enable social distancing to take place.
As such courts need to find solutions that allow for civil court business to continue in a safe environment, making necessary adjustments to avoid large numbers of members of the public congregating in small waiting areas, which is often the case when rent possession proceedings are heard as a result of block listing.
In light of this guidance, it is likely courts will carry out more hearings in a way that enable social distancing such as increased telephone and video hearings and a substantial reduction in the number of cases that are block listed, if not abolition of block listing in the imminent future.
The LCJ also suggested that empty courts and other waiting areas should be used as waiting areas before a hearing commences and if necessary, people should be required to wait outside a court building until called.
Litigants in person (LiP)
LiPs are usually not represented by a solicitor; as a consequence LiPs may find it more difficult to engage in telephone hearings. As such, the LCJ feels telephone or video hearings would not be appropriate where a LiP is either homeless, chaotic (due to alcohol or drug use), has learning difficulties or significant mental health issues, or has other needs or disabilities which would mean that a telephone hearing would be impractical.
In this regard, the LCJ has stated that the full co-operation of the legal profession would be required to facilitate telephone hearings.
The implication of this for Registered Providers (RPs) which represent themselves at court is they will need to be prepared to take part in telephone or video conference hearings rather than physically attending court.
Trials and hearings involving live evidence
The Civil Procedure Rules (CPR) allow for evidence to be received by telephone, video link and so on. Whilst it may be difficult in the short term to avoid the need to adjourn some trials and final hearings due to the inability of people to participate, the overriding message is that courts are to do what they can do safely. Courts must be sensitive for other people's time, particularly those classified as key workers, such as the police.
This is likely to have an impact on RPs in that the police may be reluctant to exercise a power of arrest, except in the most serious of cases. The reason for this is that a defendant will have to be conveyed to court and one, if not two, police officers will be taken off duty to accompany a defendant to court, then stay at court until the court has heard the matter.
Should this happen then RPs should consider making a committal application.
Prioritising of work
Dedicated Civil Judges have been encouraged to work with operational and listing staff to identify local priorities and to think creatively about solutions to maximise social distancing while allowing as much court business as possible to continue in a safe environment. The LCJ also recognised the availability of judges is potentially an issue as they, like everyone, are not immune from contracting Covid-19 and as such judges should be used as efficiently as possible.
This means that there will undoubtedly be a reduction in face to face hearings/trials and an increase in telephone and video hearings. This is because rather than have judges self-isolating and effectively being unable to work, they will be encouraged to carry out virtual hearings from home if they are well enough to do so and the hearing to be recorded.
Possession proceedings
We are awaiting emergency legislation as the government is imposing a three month moratorium on the issuing of social or private rent possession proceedings or the enforcement of possession orders during the Coronavirus emergency. For more information about the government's announcement please click here. However, the LCJ recognises there are cases already in the system which may lead to suspension applications being made and, as usual, should be prioritised.
The LCJ reiterated that block listing of possession claims is currently inappropriate due to the difficulties in being able to maintain appropriate social distancing. The LCJ has also directed judges dealing with any possession claims during the crisis, for example, due to anti-social behaviour must bear in mind the public health guidance and should not make any order that risks having an impact on public health.
Consequently, RPs could see situations where the court makes a possession order but directs that it is to take effect, for example, in three months' time. This would be in order to avoid pressure being placed on other agencies and minimise the risk of someone with Covid-19 being made homeless and subsequently spreading the virus. Alternatively, and more likely, is that the court will adjourn generally with liberty to restore any possession claims currently listed for a hearing trial.
Injunctions and committal proceedings
The urgency of such applications is recognised, and the LCJ has directed such work should be prioritised and due to the nature of such applications, in particular committal applications, they are unlikely to be suitable for telephone hearings, although it is quite possible we will see that without notice applications for Civil Injunctions due to anti-social behaviour dealt with by way of telephone or video hearings.
As this situation is so fast moving it is possible the above guidance may change with very short notice.
The judiciary has recently published a Protocol Regarding Remote Hearings. Should you require advice or assistance in relation to conducting a telephone or video hearing please do not hesitate to contact Yetunde Dania on 0121 214 8822 or ydania@trowers.com.
