As we all attempt to navigate the changes to our world at present and adjust to the challenges presented, it is clear that everyone has been, and continues to be, affected by the outbreak of the 2019 novel coronavirus disease (COVID-19).
For legal professionals, the virus is having an impact not just on our day-to-day working practices, but on our continuing professional development (CPD), deadlines for service of documents, and attendance at hearings. Such unprecedented times have led to obvious uncertainty across the profession.
From speaking with colleagues and peers over recent weeks, it appears that one of the greatest concerns for costs professionals is knowing how to approach listed hearings; primarily costs and case management conferences (CCMC), directions hearings and detailed assessments. From practical experience, the courts seem to be taking a pragmatic and reasonable approach, in agreeing to hold directions hearings and CCMCs by telephone, and adjourning detailed assessment hearings (for example, the writer was scheduled to attend a detailed assessment hearing at the end of April, which has been adjourned to the end of October by the court’s own volition). It is also currently common practice for parties who have not heard from the court as to whether a hearing has been adjourned, to agree to an adjournment. However, whether the courts will also be in agreement is not a foregone conclusion.
Despite the previous absence of any guidance, on 20 March 2020, the general approach was put into the form of more formal, yet still basic, guidance, by the Ministry of Justice. The guidance identified three available options for the courts:
- Remote hearings.
- Limited in person appearance.
- Adjournment of cases.
On 2 April 2020, a list of court categories was published which identified three types of court:
- Open courts (these buildings are open to the public for essential face-to-face hearings).
- Staffed courts (staff and judges will work from these buildings, but they will not be open to the public).
- Suspended courts (these courts will be temporarily closed).
There remains confusion as to whether hearings listed to be heard in a suspended court will be transferred/adjourned, how you will be notified, or whether there is a central point of contact for direct queries. It seems that peer-to-peer contact and sharing of personal experience could be a key factor, and that hearings on the whole will be addressed on a case-by-case and court-by-court basis.
Of course, the current circumstances are affecting more than just hearings. Costs lawyers have a responsibility to keep up to date with their CPD, which has been made more difficult in view of social distancing and the cap on the number of points you can obtain through accredited distance/online learning. Again, the Costs Lawyer Standards Board has reacted swiftly and reasonably; on 23 March 2020, a policy statement was released, relaxing the CPD requirements so that the six point cap on e-learning activities no longer applies, and allowing e-learning on any subject matter relevant to your practice to count towards CPD requirements.
Statute has also been updated to reflect the current climate. Numerous emergency updates have been made to the Civil Procedure Rules. By way of example, the 118th update to the CPR introduces Practice Direction 51ZA (Extension of time limits and clarification of Practice Direction 51Y – Coronavirus). The key point to note is that the parties can agree extensions of time for up to 56 days without the permission of the court (previously 28 days). In addition, the court will take into account the impact of the pandemic when considering applications for extensions of time for compliance with directions, adjournment of hearings, and applications for relief from sanctions. The practice direction will be in place for a finite period only (although it will be continually under review), and will currently cease to have effect on 30 October 2020.
Overall, the judicial system and regulatory bodies appear to have stepped up to the challenges our society currently faces. There is not, however, a uniform approach, so it is important that individuals continue to follow the government guidance in respect of social distancing wherever possible, and think pragmatically and liaise with opposing parties and the court if there is any uncertainty as to whether or how a hearing can proceed.
Natalie Swales is a council member of the Association of Costs Lawyers and a partner at Masters Legal Costs Services LLP.