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.

  • COVID-19, Shipping Offshore, Litigation and Arbitration


    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.

  • Financing, COVID-19, Financial Regulation


    Price in mandatory offer – provisional rules

    The Norwegian Ministry of Finance has issued a provisional regulation for the determination of offer price in mandatory offers where the mandatory offer obligation is triggered by an equity contribution to a company in severe financial distress.

  • Technology and IT Law, COVID-19


    Do you want to share your technology for free in the fight against COVID-19?

    Our days are characterized by a national and global effort to fight the COVID-19 virus. As long as we do not have vaccines, medicines or other solutions that can defeat the pandemic, countries around the world resort to curfew restrictions, guidelines for hand washing and social distancing to keep the virus from spreading. There is however no doubt that the race to fight the pandemic is on, and now "Open COVID Pledge" encourages organizations around the world to contribute to research and development by sharing their intellectual property rights for free. Recently, giants such as Facebook, Microsoft, Amazon and IBM announced that they are joining the initiative.

  • Oil and gas, COVID-19, Renewable energy and infrastructure


    Rescue package CCS investments: What does it mean?

    A recent rescue package launched by the Norwegian government intends, among other things, to stimulate activity levels through carbon capture and storage ("CCS") investments. What are the main elements of this scheme, and what does it mean for investors and suppliers?

  • Shipping Offshore, COVID-19


    Navigating the liquidity squeeze

    The COVID-19 virus and its countermeasures, the plunge in the oil price and extreme currency fluctuations are adding to the pain of a prolonged downturn in several shipping / offshore segments with imminent risk of liquidity loss. Decisive response is thus crucial to preserve value for the stakeholders involved.

  • Technology and IT Law, Data Protection, COVID-19


    COVID-19 and new IT solutions: Privacy in quarantine?

    The corona virus is putting the health and social contemporary world in crisis. The spreading of the virus is very fast and the implementation of new IT solutions to manage both ascertained and potential corona contagions is under evaluation worldwide. The question is - how will the new technologies handle privacy of individuals?

  • Employment Law, COVID-19


    Temporary lay-offs

    Temporary lay-off (Nw. "permittering") is an arrangement where the employee's duties lapse in full or in part, and the employer's duty of remuneration lapses correspondingly. Lay-offs are temporary and the employee maintains his/her status as an employee.

  • Shipping Offshore, COVID-19


    The COVID–19 virus: Legal challenges for the shipping and offshore industry

    The fast spreading of the COVID-19 virus world-wide and actions by regulatory bodies create challenges for all industries, and particularly the shipping and offshore industry, being of international character.

  • Mergers and Acquisitions, Tax Law, COVID-19


    Governmental support in the coronavirus situation

    The following gives an overview over the most relevant temporary measures put in place by the Norwegian government to mitigate the effects of the ongoing Covid19 situation with respect to the Norwegian industry and commerce. This article is last updated 20 March 2020 12:00 (CET). Please note that changes to the below-outlined measures may be made quickly, and that new measures are continuously being evaluated and put into force.

  • Employment Law, COVID-19


    The coronavirus - labour law issues (updated 15 April)

    We have compiled our assessments of certain practical issues for employers related to the coronavirus situation.

  • Capital Markets, COVID-19


    Structuring bond buy-backs in declining markets

    Fear of the Corona virus and a plummeting oil price has sent stock markets down and the credit spreads are widening significantly. With investors in sell-off mode issuers can buy back bonds at more attractive spreads, but buy-backs of listed bonds should take into account securities trading regulations and be structured properly.

  • Technology and IT Law, Protection of privacy, COVID-19


    COVID-19 and Data Protection

    The Norwegian and three other European data protection supervisory authorities on employers' collection and disclosure of employee data.