8th Apr 2020

David Hoffman considers the impact that the current situation is having on business and property law.

A great deal has changed in the past few weeks. All of a sudden, the Courts are having to adapt to a complete move away from hearings in person. This newsletter sets out how this may apply to general commercial cases, and those in the specialist business and property courts, for the near future. We’ll also cover how we, the 18 St John Street Chambers Business and Property team, can continue to provide first class support to you and your clients even while things remain uncertain and unsettled.

What’s the biggest impact?
No hearings are taking place in person in the civil courts for the time being. That means that all hearings listed for the next month or two will have to be reviewed. The options are:

  • Have the hearing by phone or video link
  • Have the hearing adjourned
  • Settle the case (or at least the hearing)

Plus bear in mind that some courts have closed altogether for the duration and some have a limited staff only. Even where courts are staffed, some of the staff are off self-isolating and so are some of the Judges.

So what should you do?
The most important thing is to review any forthcoming hearings as soon as possible. The Courts are swamped trying to keep things under control. You should already be working out what to do with any hearing in the next few weeks.

If you think it really needs to go ahead, and is manageable by remote tech, then you should see if you can agree that with the other side and get in touch with the Court as soon as possible.

If the hearing needs to be adjourned, again the sooner the better, and ideally by consent and with directions for what happens next.

Remote hearings
If you have a hearing which is going ahead remotely, it’s critical to review arrangements as soon as you can and contact the Court. For instance:

  • Directions for the hearing may need to be adjusted to allow for earlier exchanges of evidence and submissions to ensure everyone has everything.
  • The Court will also need to give directions about the method of holding the hearing – phone or video? Which video? Who should organise it?
  • Specific directions are required on who should record the hearing and whether it is in public or private, and if in public whether the public require access and if so how: see Practice Direction 51Y and the Remote Hearings Protocol.
  • You may need to prepare an e-bundle – at the very least a pdf with all relevant documents (but only relevant documents, and extracts where possible) – but ideally using e-bundle software so it has pagination and internal links to a contents page.

What else do you need to know?
There’s some more new CPR which impacts on all cases but including business and property cases.

  • Practice Direction 51Z has stayed all possession hearings under CPR Part 55 or warrants or writs of possession for 3 months. Bear in mind that cases not issued under Part 55 which might result in possession but haven’t got as far as a warrant may not be stayed, depending on the particular Court’s response – but any application to stay is, by analogy, bound to be received favourably.
  • Practice Direction 51ZA allows the parties to agree extensions of time for up to 56 days without the Court’s permission, instead of the usual 28. This is in force until 30 October 2020.
  • PD 51ZA also provides that the impact of the pandemic will be taken into account in applications for extensions of time, adjournments and relief from sanctions. The Courts have already shown that they are willing to be flexible about such applications, but you may still need to explain the specific difficulties. Any applications should be made in good time as far as possible.
  • There is a temporary Insolvency Practice Direction (we’ll discuss this further in an upcoming blog).

There’s a range of guidance available for specific local and specialist courts

Do check online for the most up to date position.

Virtual ADR
It’s bound to be the case that many litigants will want – or need – to get shot of whatever they have going on. Some for health reasons, some for financial reasons, some because the pandemic has lead to an outbreak of sanity…

There are plenty of options:

  • Mediations can be conducted remotely: most standard video meeting services have the ability to create rooms or parallel chats so that party and lawyer meetings can happen at the same time. Or else there can be separate phone calls.
  • Arbitrations can be conducted on paper or remotely: that keeps the process under the parties’ control and allows it to continue at a sensible pace without having to navigate the overload on the courts. An arbitration over email and on paper can still be interactive with the arbitrator but avoids any contact. You can also agree proportionate directions to keep costs down.
  • Expert determinations may be particularly suitable for getting an efficient resolution.

What other impact will all this have?
Beyond the immediate conduct of litigation, there are bound to be serious consequences of the shutdown. There will no doubt be claims about insurance policies, and a lot of arguments about force majeure clauses – not just whether they apply but also what consequences follow. Does one party to a contract have to perform? Does the other have to pay, even if goods or services are not provided? A recession is likely, which usually throw up property and insolvency cases. There are the various provisions of support but there are bound to be arguments about late paying of taxes and so on and what the limits are of any relief. All of this will need to be resolved.

How we can support you?
The main thing we want to reassure you about is that at 18 St John Street Chambers we are open for business. All members of our business and property team are available as normal to provide the same high quality and responsive service, whether by telephone, video or just on email as usual.

  • We can provide virtual meeting facilities for conferences to take instructions and discuss cases, including the impact of the shutdown.
  • We can appear in court by phone or video link, including Microsoft Teams, Skype for Business and Zoom.
  • We can help with managing documents to get them ready for hearings.
  • We can provide qualified and accredited ADR specialists, including accredited mediators and arbitrators and experienced counsel to provide expert determinations.

We understand the challenges that you, our instructing solicitors, are facing in the current climate and we are here to support you in all matters, ranging from an informal chat about some especially awkward matter, to providing assistance in using remote hearing technology and everything in between.

Please feel free to contact us on our usual contact details and we will be delighted to assist you.