In these unprecedented times we have seen a significant shift in the conduct of civil litigation over a very short space of time.
Please note: the information contained in our legal updates are correct as of the original date of publication
In these unprecedented times we have seen a significant shift in the conduct of civil litigation over a very short space of time. In keeping with the developing response of the government to the COVID-19 pandemic, it has been necessary for the judiciary and practitioners to adapt swiftly to the rapidly changing situation. We consider some of the more significant developments to date.
A number of insurers and claimant firms have signed up to a protocol which is intended to represent an extension to the existing personal injury protocol. Taking effect from 24 March 2020 for a minimum of 4 weeks the protocol incorporates an agreement to freeze limitation dates, allowing claimants to navigate the current difficulties without the risk of their claim becoming statute barred. What the protocol does not do is waive any limitation defence that was available at the point the protocol came into existence and practitioners must remain mindful of that.
To reflect the restrictions we all currently find ourselves under, court hearings are to be conducted remotely wherever possible through video or audio conferencing. We have already seen high-profile hearings taking place with remote court attendance and whilst a number of imminent trials have been vacated to allow the new technology to bed in, we can expect a significant majority of hearings to be conducted remotely for the foreseeable future.
There are several platforms that provide the functionality for remote hearings, to include Zoom and Skype for Business, with the preference of the courts varying. Parties will want to be proactive, liaising with opponents, the court, witnesses, experts, and where appropriate the press, to ensure there has been adequate preparation in advance of the hearing. There will be challenges, not least in cases involving litigants in person, but with a clear commitment by courts that momentum is not lost in cases it will be necessary for parties to embrace the technology – it seems increasingly likely there will remain a greater emphasis on remote hearings once the crisis has passed and with mediations, JSMs and conferences following a similar path it could well be here to stay.
Parties should, where necessary, prepare an indexed and paginated electronic bundle of documents and authorities in advance of any remote hearing. Bundles ought to be restricted to those documents absolutely necessary to resolve the issues in dispute, allowing the parties and the court to remain focused.
It is acknowledged that there is need for greater flexibility in case management to reflect challenges in contacting witnesses, accessing documents and maintaining expert appointments. We have therefore seen the implementation of a new Practice Direction (PD 51ZA), which came into force on 2 April 2020 and increases the period the parties are able to agree extensions of time without requiring permission of the court from 28 days to 56 days. It also specifically recognises that additional extensions might be necessary and requires the court to take into account the impact of the pandemic when considering any application.
Whilst this is certainly a welcome addition to the CPR, there remains a very clear expectation that parties will continue to progress the litigation. It cannot be assumed that applications to extend time beyond the 56-day period will be waved through without good explanation of why the timetable cannot be complied with – every attempt to comply should be made and persuasive evidence that the pandemic made compliance impossible will be expected.
The current situation brings into sharp focus the need for parties in litigation and their legal representatives to take a pragmatic and collaborative approach to work through challenges. In a time when remote communication is necessary, greater engagement is key to ensure that cases continue to move forward to a resolution.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship. There are already restrictions on the extent to which personal injury claims can be settled by a settlement agreement. There have also been numerous consultations about the use of non-disclosure agreements and confidentiality clauses, particularly where allegations of sexual harassment and discrimination have been raised. In any event, it is clear that settlement agreements should not be used to prevent an employee from raising a protected disclosure.
Claims arising from interest-only mortgages have been farmed in volume. Many such claims to date have sought to drive a narrative that interest-only mortgages are an inherently toxic product and brokers were negligent simply for suggesting them. Taylor is a helpful recalibration, focussing instead on what the monies raised by the mortgage product were being used for and whether the client understood the inherent risks.
In an effort to build a stronger justice system, a shift in priorities has emerged away from adversarial court battles and more towards opportunities for consensual resolution. As one of the most popular forms of Alternative Dispute Resolution (ADR), mediation has become increasingly encouraged.
In a judgment handed down yesterday the Supreme Court has affirmed that a so called “creditor duty” exists for directors such that in some circumstances company directors are required to act in accordance with, or to consider the interests of creditors. Those circumstances potentially arise when a company is insolvent or where there is a “probability” of an insolvency. We explore below the “trigger” for such a test to apply and its implications.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
Practice Direction 57AC (“PD57AC”) relates to witness evidence in trials and explicitly applies only to the Business and Property Courts. It applies to existing proceedings in which the witness statements for trial are signed on or after 6 April 2021.
The Supreme Court has unanimously dismissed the BTI v Sequana appeal and reviewed the existence, content and engagement of the so-called ‘creditor duty’; being the point at which the interest of creditors is said to intrude upon the decision-making of directors of companies in financial distress.
The increased use of artificial intelligence (AI) is revolutionising the way businesses operate and is having a disruptive impact in sectors that have traditionally been slow to modernise.
In November 2021, The Civil Justice Council’s published its interim report on proposed changes to the current Pre-Action Protocols, which included a mandatory Alternative Dispute Resolution (ADR) gateway. In this article, we look at proposed reforms and consider what this could mean for your case.
Janice Walsh applied for a job with Domino’s Pizza, hoping to secure a role as a Delivery Driver. However things quickly took a turn for the worse during her initial interview, with the very first question that she was asked relating to her age. Ms Walsh was ultimately informed that she had not been successful in her application.
The Court of Appeal has dismissed two cases regarding rent arrears accrued during the Covid lockdowns. The cases are London Trocadero (2015) LLP v Picturehouse Cinemas Ltd and Bank of New York Mellon (International) Ltd v Cine-UK Ltd.
In the recent case of Dwyer (UK Franchising) Limited v Fredbar Limited and ano’r  EWCA Civ 889, the Court of Appeal considered the reasonableness of restrictive covenants in a franchise agreement.
The Employment Appeal Tribunal (EAT) decision in the case of Warburton v The Chief Constable.
Restrictive covenants are widely recognised as a complex area of employment law that is of key importance to many organisations. However more recently, they have become a hot topic with the Government launching their consultation.
In Nissan v Passi, the High Court recently considered the issue of an employee retaining confidential documents belonging to his former employer in the context of the employer’s application for an injunction seeking the return of such documents from the employee.
We regularly encounter disputes relating to Service Level Agreement provisions - here we provide four top tips that you can use to minimise disputes.
The Highway Code has had its first major revision since 2007. Amongst several changes, a new hierarchy has been created, with road users who are most likely to cause harm having the greatest responsibility to reduce the threat they may pose to other road users (rule 204 of the Code).
We were delighted to be joined by Dr Nigel Sturrock, Regional Medical Director for the Midlands at NHS England and NHS Improvement. He gave an overview of the pressures placed on the NHS by the pandemic, including the impact on urgent and emergency care, elective procedures and staffing.
Schools will need to comply with the requirements of the PAPDC or potentially face financial consequences. This article provides an overview of the PAPDC and explains how it applies to schools.
Following on from our recent article on the release of the updated Code of Practice for dealing with commercial rent arrears that have accrued throughout the pandemic, we continue to highlight what the overall principles seek to ensure - fairness and proportionality for both landlords and tenants across each step of the arbitration process.
The Supreme Court has unanimously overturned the Court of Appeal’s 2019 decision in the case Lloyd (Respondent) v Google LLC (Appellant) which allowed the claimant, Mr Lloyd, to serve a representative action on Google on behalf of over four million iPhone users who were seeking damages for ‘loss of control’ of personal data.
It is an unfortunate reality that many local authorities face historical abuse claims, and often held vicariously liable for abuse by their former employees. We set out an overview of recoveries law and insight into successes we have had in recouping money for local authorities.
The ‘new normal’ has brought with it a variety of different challenges and it has had an impact on nearly all facets of our lives, including the termination of contracts during these Covid-19 times.
The PAPDC does not apply to business to business debt only if the debtor is a sole trader. Much more information is required under the PAPDC within a letter of claim and debtors should be given more time to respond along with an opportunity to make payment proposals throughout the pre-action process.
For business disputes, it looks likely that remote hearings will be an option into the future.
The recent decision of the Supreme Court in Triple Point Technology, Inc. v PTT Public Company Ltd  UKSC 29 has brought long-awaited clarity to the proper approach to the interpretation and application of liquidated damages clauses where works under a contract are delayed and the contract is terminated before the works are completed.
The Supreme Court’s pending decision could potentially open the floodgates for data privacy litigation going forward.
A number of interesting developments have emerged from what was quite a run-of-the-mill insolvency application brought by a litigation funder assignee.
The Technology and Construction Court has recently handed down judgment in a complex and high value claim brought by the Co-op’s insurance arm (CIS) against IBM following the termination of a contract for a new IT system.
The Civil Procedure (Amendment) Rules 2021 (‘the CPAR 2021’) introduces a new Civil Procedure Rule 36.5(5) to clarify the issue of interest after the expiry of Part 36 offers.
From 26 March 2021 the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2021 will come into force with the effect of extending several of the temporary measures brought in by the Corporate Insolvency and Governance Act 2020 (CIGA).
In this training video participants and their organisations will be starting to look beyond the immediate impact of Covid-19, now planning for the future of litigation including child abuse litigation.
The Ministry of Justice has recently released its civil justice statistics for the period October to December 2020. These statistics show an overall significant downward trend in claim activity compared to pre-Covid times.
What are the key changes to Practice Direction 57AC and Statement of Best Practice, and what are the challenges for legal representatives?
In 2016, Lord Justice Briggs set out his proposals for restructuring the civil courts and tribunals in England and Wales. The vision for modernising court services and creating the “Online Court” has seen the introduction of online platforms for civil claims in recent years but progress has been described as slow.
This claim addressed the question, of when the date for assessment of damages in cases of negligence should be determined and shows that when appropriate the Courts will depart from the default position.
This judgment is critical reading for public bodies who need to take action to restrain the use of confidential information in circumstances where that information has been inadvertently disclosed to a third party.
Part 36 offers in litigation are used tactically to make a settlement offer while simultaneously placing the other side on risk of not ‘beating’ that offer at trial.
The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 is due to come into force on 4 May 2021. It’s a snappy title but what exactly is it?
Insights were shared on procedure, witness statements, withdrawing admissions and taking screenshots and photos in remote hearings.