REUTERS | Neil Hall

Dealing with the challenges of the COVID-19 pandemic in the civil courts

2020 will be remembered as the year COVID-19 changed our lives in ways we could never have imagined. It has brought every single one of us a set of new challenges that we have learnt to live with to the best of our ability and through utilising resources available to us. Whether we have had to adapt to changes in our daily routines, cope with isolation, worry about the health of those closest to us, or we have sadly lost loved ones; as a society, it has changed our lives beyond recognition.

At the start of the pandemic we rapidly needed to put measures in place to keep HMCTS services running. Many of us, at some point in our lives, will need to access the justice system. As the organisation responsible for the administration of courts and tribunals in England and Wales, we needed to act quickly to allow hearings to continue. Early in the pandemic, the Lord Chief Justice said in an update:

“Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.”

But it was not only the essential need to maintain a public service that was at the forefront of our minds. Civil justice in England and Wales covers a diverse range of dispute resolution: from simple claims, like damaged goods, to much larger claims, such as those between multi-national companies. Whether small or large, going to court to resolve an issue can be a stressful time for those involved, so the human aspect of justice was just as important as we navigated the crisis.

Continuing civil hearings through the pandemic

A review of the civil courts was conducted in May 2020, led by Dr Natalie Byrom of the Legal Education Foundation. The review looked specifically at the impact of COVID-19 on civil court users and received over 1000 responses. A report was published by the Civil Justice Council (in conjunction with the Legal Education Foundation) in June 2020. Dr Byrom said of the report:

“The volume of responses reflects a wide recognition of the importance of understanding the impact of COVID-19 on the justice system and supporting the judiciary and court service in their efforts to ensure that hearings are able to take place. The report recommends immediate steps that can be taken to build on existing practice and ensure that remote hearings support access to justice.”

Before the crisis, the civil courts were already substantially challenged after a continued increase in caseload over several years, which put a strain particularly on judicial and (in some areas) courtroom capacity. Although we had identified the need to modernise processes through our court reform programme, there was still work to do to in the civil jurisdiction to improve the timeliness of final hearings. Early on in the pandemic, we worked closely with the judiciary to provide a service that protected our most vulnerable users, including a stay on housing possession cases and by pausing enforcement activity. We also supported the judiciary to prioritise and triage cases and ensured that they carried on being heard.

The measures we took, together with bulk claim issuers temporarily stopping specified claims, saw new cases received by the civil court reduce by more than half in the first few months of the pandemic. Unspecified claims returned to pre-COVID levels over the summer and specified claims at the end of the year were nearly back to pre-COVID norms. When the pandemic hit, like many other areas of justice, we immediately made full use of audio and video hearings and have continued to support remote hearings by increasing our staff numbers. As we moved further into our recovery, we increased court room capacity where it was safe to do as quickly as possible and the opening of Nightingale Courts has strengthened this capacity.

By the end of August 2020, around two-thirds of planned sittings were taking place and this level has continued to improve. From September to November 2020, sitting levels averaged around 6,500 a month. The number of final hearings being heard have also increased as we reopened more courtrooms, which improved through the autumn. From December, against pre-COVID averages, small claims averaged 88%, fast track 80%, and multi-track 102%.

On 21 September 2020, the stay on possession proceedings was lifted. Previously, the (then) Master of the Rolls, Sir Terence Etherton, had established a working group for possession under Knowles J. New rules proposed by this working group ensured that the protection of parties was improved when possession cases resumed. The Ministry of Housing, Communities and Local Government also worked hard to ensure that the courts were well prepared to manage possession cases.

In the Business and Property Courts, our caseload has remained broadly the same since March 2020, apart from fewer Insolvency and Companies Court applications.

Looking forward: 2021 and beyond

The progress we have made over this challenging period has only been possible due to the commitment of HMCTS staff, the judiciary, our partners across government, the legal profession, and other third-party organisations we have worked with, I cannot thank them enough.

As we move further into the year, we know that the civil courts will face more pressure, not least because we are in our third period of lockdown. There are already a significant number of new cases being issued and these numbers will increase further over the coming months, so we will ensure that we manage this caseload as efficiently as possible.

We know that the efforts we have put in place; the increase in remote hearings, the recruitment of additional staff to support those hearings, the provision of laptops to staff working from home and to fee-paid judge, along with an increase in the number of civil sitting days, will put us in a better position to meet the challenges ahead.

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