Law under lockdown
The COVID-19 pandemic has seen many parts of the world placed under severe restrictions on travel and movement, with various forms of lockdown. Despite such difficult times, it remains important for individual states to maintain as far as possible a functioning legal system across civil and criminal areas to promote access to justice, reinforce the Rule of Law, and to underpin the personal and business interests of people and corporations. For shipping interests this comes at a time combining volatile shipping, energy and commodity markets with a global state of emergency with distinct echoes of the 2008 crash and a potential for a significant increase in legal disputes.
This article looks at how the English legal and arbitration systems have adapted to a State in lockdown.
It was already possible to have a degree of remote attendance at hearings. For example, foreign witnesses were able to give evidence via video link in civil cases and arbitrations. Criminal and family cases also permitted witnesses to attend remotely given concerns over protecting the vulnerable.
In the civil and commercial sphere, the courts are still functioning with an emphasis on genuinely urgent applications, such as freezing orders and injunctions. Likewise arrest of ships under Admiralty Court jurisdiction is still possible using electronic filing.
This was underlined by an announcement from the Lord Chief Justice that “We have put in place arrangements to use telephone, video and other technology to continue as many hearings as possible remotely. We will make best possible use of the equipment currently available; HMCTS is working round the clock to update and add to that. Some hearings, the most obvious being jury trials, cannot be conducted remotely.”
The court system has had to adapt to deal with cases primarily via telephone or video conferencing. The preparations for such systems were already in place, but the magnitude of the current crisis has forced their adoption, overcoming any objections to their use. Following official guidance and the introduction of The Coronavirus Act 2020, the presumption now is that all hearings are to be conducted remotely where possible.
Televised cases have been used for a number of years. The above developments acknowledge that public access to courts is an important part of the justice system, with limited exceptions, and that even remote hearings should still be public hearings where possible.
Practice directions have clarified the manner in which the court may exercise its discretion to conduct hearings remotely in private, and to set out the steps to be made to ensure access by the public to remote hearings held in private, by making available audio or video recordings of those hearings at a time when the courts are operating normally.
A key driver behind keeping courts operating remotely was to avoid the inevitable backlogs and delays which would build up if cases were adjourned.
It is important to note that there is no intention in the above Act to suspend time limits. Claim forms still need to be served and limitation periods adhered to.
The Ministry of Justice recently confirmed an amendment of the rule allowing parties to agree extensions of up to 28 days without being required to seek the court’s permission. The new practice, direction provides for this to be doubled to 56 days. Parties are also encouraged to use the available time to explore between themselves, the possibility of compromising claims before resorting to adjournments.
There is also a drive to accept electronic signatures and witness statements, with documents able to be signed electronically. It is important to remember however, that the special requirements of a document to be executed and witnessed as a deed under English law do not yet have an electronic equivalent. The COVID-19 situation is certainly compelling in this area, not least as this requirement for being signed in the presence of witnesses affects the ability of people to validly execute wills under the current travel restrictions and social distancing regime.
In terms of how these changes translate into resolving matters, the case of Fowler v Commissioners for Her Majesty’s Revenue and Customs, takes the credit for making legal history as the first Supreme Court case to be handled solely through video conferencing. The case concerned the tax treatment of a diver with the parties and their legal teams, counsel and the Justices themselves all located in different places during the hearing.
The proceedings were made available shortly afterwards and are available to the public with appropriate restrictions on recording or redistribution. Whilst tax cases are by nature perhaps a little dry, the introduction of Lord Hodge and the submissions from Counsel provide an insight into what can be achieved online. As for any hearing, it seems that management of the paper bundles or e-bundles remains a key challenge in presenting and digesting argument.
Following the closure of its physical premises in March, the Supreme Court has indicated that cases will proceed with judgments to be handed down via video conferencing until further notice.
Likewise, the Commercial Court handled a high profile matter concerning the Republic of Kazakhstan by way of a groundbreaking full virtual trial by video conferencing software, again with open online access.
International arbitration has an inherent flexibility, with arbitrators afforded an element of discretion in the conduct of cases and commercial parties and their advisers able to agree how proceedings are run. For London maritime arbitrations, the LMAA recently reassured its users that arbitrators can continue to be appointed via email and with documents only Awards being sent out by e-mail as usual.
For cases that require an oral hearing, virtual hearings have previously been available and are now being actively promoted with a likely future benefit being enhanced ability for parties to arrange hearings partly or entirely on a virtual basis. A Working Group has been established by the LMAA to support this development.
In terms of support from the Court system, arbitration applications and appeals continue to be heard. Whilst they are by nature confidential and subject to reporting restrictions, it has been clear from recent experience that a number of significant arbitral hearings progressed entirely on a virtual basis and as for the Commercial Courts, that process involves all participants attending remotely from their respective separate locations.
Even with the serious market disruptions, it remains possible for parties to continue settlement discussions, using technology to replace international travel. It is also worthwhile to consider Alternative Dispute Resolution including mediation as a more structured route towards compromise at this time. That may apply all the moreso where there is anticipated to be an increase in the volume of cases in court and arbitration proceedings even once the initial phase of the pandemic has eased. Given the International aspect of shipping litigation, many mediators and practitioners are familiar with online mediation as a concept and in practice, and it is hoped that this will provide parties with a further tool to meet their needs.
Remote working has very rapidly become established as a close equivalent to business as usual with States, professional bodies and parties able to use technology in innovative ways which has already brought change in legislation and protocol and is now positioned to bring longer term benefits to commercial and legal practices.