How to conduct lower value PI hearings post-Covid-19

This has been an unprecedented time for the County Courts. This article addresses the major challenges and the solutions that are being adopted in lower value PI hearings, principally Small Claims and Fast Track trials, Stage 3 and disposal hearings, application and case management hearings and settlement approvals. The combination of busy lists, a high proportion of witness trials and the long-standing practice of block listing have led to significant disruption in day-to-day business in this practice area.

The focus of this update is on (1) existing guidance, (2) the feasibility of switching different types of lower value PI hearings to digital methods (i.e. telephone or video link) and (3) wider implications of the current crisis on future listing practices and dispute resolution.

(1) County Court guidance:

County Court guidance for PI matters is in a state of flux. Current operations are guided by a mix of general civil court guidance from HMCTS and the Lord Chief Justice, more localised guidance and ad-hoc listing practices in individual courts.

General civil court guidance published on 23 March predates the stricter lockdown measures introduced by the Government.[1] There is also a protocol on remote hearings dated 20 March (published 22 March), which applies to all civil hearings in the County Court, High Court and Court of Appeal (Civil Division).[2] In addition, the CPR have been amended to facilitate audio and video hearings via the new PD51Y dated 24 March (published 25 March).[3] There has also been general guidance from the Lord Chief Justice, announcing that remote participation should be accommodated wherever possible on 19 March[4] and that HMCTS is actively working on technological innovations to hold as many hearings as possible on 23 March.[5]

More useful in points of detail is localised guidance. Good examples are the Manchester Circuit guidance published on 20 March and the listing protocol of the North and West Yorkshire and Leeds District Registry published on 23 March.[6] The latter deals with alternative arrangements for each major category of case (mainly PI, but also small property and commercial hearings) and could form a helpful model for County Courts across England and Wales.

The other major recent development is the provision of up-to-date information on which civil and criminal courts remain in operation and in what form.[7] This is a valuable tool for litigants, practitioners and the judiciary, and will hopefully ensure effective use of court facilities.

(2) Digital methods and lower value PI hearings:

(a) Small Claims trials:

The limited localised guidance and ad-hoc listing practice so far indicates that the immediate option in almost all cases in this category is postponement. The main obstacle is the prevalent practice of block listing and the focus on witness evidence. From personal experience, a further practical issue is the absence of agreed hearing bundles and common resort to additional documents on the day of the hearing. A good example is the routine use of Google Maps images provided by witnesses or counsel in RTA cases. This reflects the flexible rules of evidence and hearing procedure under CPR r.27.8 and r.27.2.

Given the low value of Small Claims trials (by definition below £10k in most cases), the push for digital methods such as hearings by Zoom, Skype or other video link has been slow from litigants and the courts alike. This is in contrast to the proactive approach already witnessed in the Commercial Court, TCC, QBD and Chancery Division. As Government predictions about the period of disruption continue to rise, such methods will have to be given fuller consideration in order to avoid a huge backlog in what is cumulatively a large part of civil justice.

(b) Fast Track trials:

The challenges associated with Fast Track trials are similar but there are material differences. Block listing leads to a large proportion of such trials being vacated and re-listed even before the current crisis. There is also an argument that the upward shift in value (typically £10-£25k) and more generous fixed costs regime (in CPR Part 45, Section IIIA) mean using additional party and court resources to make at least a proportion of these trials proceed should be a priority. This could include charging higher court fees from parties who wish to make use of digital options. In most cases, in the form of video link technologies.

The other features of Fast Track trials that arguably justify increased use of video link methods are (1) relatively limited cross-examination of witnesses of fact and experts, when compared to Multi-Track trials, and (2) higher expectations for preparation of agreed trial bundles and strict rules on admissibility of further evidence, in contrast to Small Claims hearings.

(c) Stage 3 and disposal hearings:

These are perhaps an emerging success story. Anecdotally and based on localised guidance, these hearings have proceeded with minimal disruption, usually by telephone, once specific times have been re-allocated from a block list.

They are a prime candidate for digital methods, even after Covid-19. This is because of the limited set of core papers (offer documentation, medical and physiotherapy reports, invoices), absence of live witness evidence, fixed costs regime and scope for short oral submissions and judgments. These hearings can also be disposed of on the papers on request.

(d) Application and case management hearings:

As things stand, many case management matters (such as allocation, standard directions and extensions of time) are dealt with on the papers in most Small Claims and Fast Track matters. This form of written determination is to be encouraged and will prevent further backlogs.

Certain applications, such as for set aside, strike-out, relief from sanctions and disclosure, tend to be more contentious and benefit from oral advocacy. For these, digital methods such as telephone and, in some more complex cases, video link should work with minimal issues for similar reasons as for stage 3 and disposal hearings. However, it is critical to ensure that key documents are circulated in advance of the hearing.

(e) Infant and protected party settlement approvals:

The further requirements of CPR Part 21 continue to apply, but these hearings also lend themselves to digital methods. They usually do not involve defendant representatives and are largely administrative. A key requirement for remote hearings must be that claimant representatives provide key documents like the birth certificate and CFO form electronically in advance of the hearing.

The listing protocol of the North and West Yorkshire and Leeds District Registry even suggests that they can be dealt with on the papers. It remains to be seen whether that is satisfactory and adopted more widely. It would discourage judges from confirming important matters like full recovery from injuries and the circumstances of settlement orally. These are not always adequately covered in the supporting documents, whether counsel's advice or medical reports.

(3) Wider implications:

The current crisis will undoubtedly affect listing practices both in the coming months and for certain hearings moving forward. The main victim is likely to be the practice of block listing. This will be welcome in some quarters. While it reduces the flexibility of judges to manage their listings each day, it is likely to reduce excessive waiting times for court users. The knock-on effect is likely to be longer delays for hearing slots.

There are also potential new business and case management opportunities for stage 3, disposal and application hearings, which may be treated as telephone hearings by default. This would increase capacity for legal representatives, as travel times are avoided. From the perspective of the courts, it may lead to a stricter distinction between trial and pre-trial business. A parallel is the practice of the Commercial Court in having a designated application day each week.

More immediately, the backlog in the County Courts is a concern for law firms, insurers and the Bar. While individually of lower value, these PI hearings are a vital stream of work and cumulatively of significant value. This will create opportunities for innovation, including through alternative dispute resolution, as well as growing pressure on the courts to make alternative arrangements wherever possible.

A proactive approach by law firms and insurers should trigger a more co-ordinated response from the judiciary in relation to the County Courts. An important wider development was the extension of Personal Injury Protocol deadlines effective 24 March by a minimum of 4 weeks.[8] This protects litigants, legal practitioners and insurers from limitation issues and also provides for a bespoke escalation process.

This is a fast-developing area and close attention will have to be paid by all stakeholders to further guidance and shifts in business practices.

[1] Available as a Word document on https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/.

[2] See https://www.judiciary.uk/publications/civil-court-guidance-on-how-to-conduct-remote-hearings/.

[3] See https://www.judiciary.uk/wp-content/uploads/2020/03/CPR-116th-PD-Update-video-or-audio-hearings-for-coronavirus-period.pdf

[4] See https://www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/.

[5] See https://www.judiciary.uk/announcements/review-of-court-arrangements-due-to-covid-19-message-from-the-lord-chief-justice/.

[6] Available at https://www.civillitigationbrief.com/2020/03/23/listing-protocol-for-civil-courts-north-and-west-yorkshire-and-leeds-district-registry/.

[7] See https://www.gov.uk/government/news/priority-courts-to-make-sure-justice-is-served

[8] See https://www.abi.org.uk/products-and-issues/choosing-the-right-insurance/motor-insurance/coronavirus-protocol/.