Overview
For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
On March 18, 2020, the Lord Chancellor declared “The rule of law is vital to a functioning democracy and even at times like these, it is essential that our independent courts are able to administer justice. Despite an unprecedented public health emergency (…) our courts across England and Wales have a critical role to play and should go on sitting”.
Court Litigation
There have been changes to the way in which proceedings are handled across England and Wales, including a reduction in the number of working court buildings, limited access to buildings, and reduced working hours. Nevertheless, the system remains operational and, in our experience, continues to function remarkably well.
The English courts are doing a good job of ensuring that cases continue and that justice is not significantly interrupted in these difficult times. The court provides daily updates on operational status changes, and it is hoped that the courts will be able to return to full capacity quickly when the crisis ends. It remains an attractive forum for the resolution of international commercial disputes whether those disputes arise under English law or the law of some other jurisdiction.
Where possible the courts are working with remote hearings by telephone or video: indeed, for the time being all hearings in Court of Appeal (Civil) and High Court (Queen’s Bench Division) are being held remotely and the court is making available drop boxes for hard copy filings. Parties are encouraged to be proactive and to liaise with the court to ensure that cases progress effectively, and the court is regularly updating its guidance on remote hearings to take account of its experience. The courts are committed to completing trials that have already started, and we have seen the first cases heard in full remotely. There is an awareness that holding hearings remotely during this crisis does not fit well with the principle of “open access” whereby members of the public may attend hearings, but this is a pragmatic and temporary measure.
The procedure for filing new claims (which is now done through e-filing) in most of the courts in which we practice has not been significantly interrupted and continues to function, and with more streamlined process we have seen some hearings being listed earlier than expected. For urgent hearings such as applications for freezing orders, the High Court has published a Contingency Plan for maintaining Urgent Court Hearings. The Court of Appeal has announced that it is dealing only with urgent applications and those should be submitted via email only.
Arbitration
Most commercial arbitration arises from an agreement made between the parties to resolve any dispute through that forum. Arbitrations allow for great procedural flexibility, and arbitrators are generally free to allow submissions to be made electronically and hearings to take place by telephone or video-conference. The major institutions who administer arbitrations in London – including the LCIA, the ICC, and the LMAA – remain open for business. Historically, delays to arbitrations have sometimes arisen from trying to find dates when three arbitrators can physically meet and dispensing with physical meetings may actually lead to some disputes being resolved more quickly.
Mediation
Among the features that contribute to making mediation a successful dispute resolution strategy is the intensity that results from parties being taken away from other distractions and focusing exclusively on their dispute for many hours, and the chance to look one’s opponent in the eye and complain or apologize as the case may be. Those features are unlikely to apply in mediations which are held remotely, but some mediators are willing to conduct mediations by telephone or video conference, and a virtual mediation could still be successful in appropriate cases. Parties who are considering mediating should weight up the benefits of having an early mediation remotely, against having a later mediation in person where the prospects of resolution may be greater.
Adjudication
Adjudication is a mandatory right under many construction contracts and often adopted in other situations. It typically leads to disputes being decided in around five to eight weeks, and for adjudicators it is business as usual. As most adjudications are dealt with on paper without an oral hearing, the current situation is having only a limited impact.
