The effects of Covid-19 on scheduled court and arbitration hearings in England

The effects of the current outbreak of Covid-19 on ongoing court and arbitration proceedings have been profound ranging from general court closures, adjournment of cases and potential increases to costs (as well as some potential savings) and a corresponding rise in remote hearings. The following article sets out basic guidance regarding the conduct of a remote hearing, addresses frequently asked questions and also reviews the potential costs consequences.

Recent announcements from the UK Government and the judiciary have outlined a new regime for the administration of justice by the English courts during the continuance of the pandemic.

The essential approach of the Commercial Court is business as usual, albeit that hearings have moved online. Thankfully, even prior to the outbreak, the Commercial Court had been operating electronic filing of all court documents which has lent itself well to life under lockdown.

Arbitration hearings are also having to move to remote platforms, with the structure and content of such hearings being more a matter of agreement between the parties and the relevant tribunal, though the arbitration bodies have been keen to provide guidelines to assist the procedural process.

With many of our clients being international, and based overseas, we have had many questions regarding the arrangements for scheduled hearings and the risk of adjournment and set out below a few of the most commonly asked questions, together with our responses to the same.

1. How is a remote hearing carried out?

Methods for remote hearings include Microsoft Teams, Skype for Business, Zoom conference calls, video link or even ordinary telephone calls.

2. What will happen to scheduled court and arbitration hearings?

Scheduled hearings are likely to proceed via video or audio, however, face-to-face hearings are increasingly unlikely. Parties and their representatives will need to be even more proactive in relation to all upcoming hearings in order to ensure that the procedure and logistics for such hearings are fully considered so that any potential difficulties are resolved well in advance. Such problems can range from inadequate internet access to simple dialling in difficulties. The earlier these issues are resolved, and addressed, the more smoothly and efficiently the hearing will be conducted and a test call/video session with the hearing participants in advance has already proved invaluable on more than one occasion.

3. What if a party is trying to delay a hearing due to tactical reasons?

Parties may differ in opinion as to whether a certain hearing should be maintained or postponed due to Covid-19. Courts and tribunals have in the past been robust and adopted strong stances against parties perceived to be openly trying to delay a case or deviate from a procedural timetable for tactical reasons. Adjournment of a hearing is still very much the last resort of the courts and tribunals in order to prevent unnecessary waste of costs and time, though it is perhaps easier in the current climate to find a legitimate excuse.

It is also important to note that should a party disagree with a proposal for a hearing to be conducted remotely, such party will need to make submissions setting out detailed reasons for its disagreement, and its propositions for another suitable solution in order to progress the case. Seeking a costs sanction for any unnecessary delay may also be a consideration where an adjournment is sought.

4. Does a remote hearing impact any existing procedural orders?

Courts and tribunals must take into consideration whether a remote hearing would impact any existing orders when dealing with procedural motions relating to Covid-19. However, the fact that a hearing is to be conducted remotely rather than face-to-face should not impact significantly the substance of a previous order. Case management conferences, for example, scheduled well before the current Covid-19 measures were put in place, continue to go ahead, albeit those arrangements are made with the judge's clerk for the remote procedure to be adopted. Of course, if it is contended by a party that a matter is not suitable for a remote hearing or, as is now usual when international parties are involved, witnesses will need to give evidence remotely from their homeland, it may address the court or tribunal on these subjects so that appropriate solutions can be found.

5. What are the cost implications of a remote hearing?

The main impact on costs will likely be those stemming from cancellations of venues, and cancellation charges incurred, for example, for transcription services no longer required. For a court hearing, the parties will agree on a remote hearing method, such as Skype for Business or video conference call, and, as such, no additional costs would be incurred. The hearing will be recorded by the judge’s clerk, a court official or even by the judge where circumstances so permit. Similar agreement as to a remote hearing method will also need to be reached for an arbitration hearing, however there is more flexibility for the parties when making these arrangements. Depending on the parties' agreement, a remote hearing can also be outsourced to a third party hearing venue provider. In either case there may be additional costs associated with witnesses and/or experts giving evidence from separate locations as they will each need to have a full set of documents at their location (to be able to refer to) and for a local solicitor (or similar) to attend the witness/expert when they are giving evidence to ensure that the process of giving evidence is carried out properly. However, these are likely to be much less than the costs of bringing witnesses to London and of renting venues.

It is important to note in this context that any costs implications due to Covid-19, should be identified, discussed and agreed between the parties upfront and, should an issue or query arise, guidance from the court or tribunal sought.

The challenges we are faced with are unprecedented and, as the authorities and institutions react, new measures are being put in place daily. For the moment, London is keeping courts open remotely, and ongoing arbitration proceedings are still active. Over the coming months, we expect that the number of remote hearings taking place will increase significantly, meaning that law firms must adapt and embrace the tools and technology required. Our clients, most of whom are based overseas, are already well-versed in conducting business both online and virtually and will undoubtedly adapt quickly to these new arrangements.

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