The Covid-19 pandemic has impacted all areas of the working world including the legal profession. The landscape for detailed assessment hearings have also changed. The Association of Costs Lawyers was at the forefront when it issued guidance for the conduct of remote hearings in April 2020 and a link could be found on the Association of Costs Lawyers web site https://www.associationofcostslawyers.co.uk/Remote-Hearings---Guidance. The guidance, which was produced by costs professionals with the support of the regional costs bench, has been welcomed by the Masters at the Senior Courts Costs Office and a link for the guidance could also be found on the Judiciary.uk website.
In preparation for a remote hearing one should also consider the Civil Court guidance on how to conduct remote hearings which also could be found on the judiciary.uk website https://www.judiciary.uk/publications/civil-court-guidance-on-how-to-conduct-remote-hearings/
The most recent guidance regarding hearings and detailed assessments in the Senior Courts Costs Office has been issued in July 2020 by Andrew Gordon-Saker, Senior Costs Judge in his practice note https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/903704/Senior_Courts_Costs_Office_update.pdf
This article will highlight some of the important points raised in the ACL guidance and the Senior Costs Judge practice note and will illustrate how coronavirus considerations impacted the procedures of some recent key cases.
The ACL guidance suggests that the practicalities of remote hearings, for example: the mode and the scope of remote hearing, have to be arranged in advance and preliminary issues determined and resolved. The importance of the electronic bundle is emphasised and great detail is provided in terms of the expectations for content and organisation of the electronic filing.
It recommends that the participants must undertake in advance a test of their facilities to ensure ability to participate in the hearing. The guidance also emphasises that the parties must recognise that the hearings might not commence at the appointed time or conclude in the estimated time and therefore the parties must make themselves available beyond the time allocated to allow for contingencies. Parties are also advised to mute their microphones when not speaking.
Master Gordon-Saker, the Senior Costs Judge has published a Practice Note on 24.07.20 relating to hearings and detailed assessments in the SCCO from 01.08.2020. The note confirms that very few hearings have been adjourned since March 2020 and states that it is for the Costs Judge or Costs Officer to decide the format of the hearing. The note informs that the hearings will fall into 3 formats:
The parties may apply for a different format of hearing within 14 days of receipt of the notice of hearing. If the hearing is by video, the Court will make arrangements and if the hearing is to be held by telephone, the receiving party should arrange the conference call, unless the court has directed otherwise.
The note also provides guidance as to the 3 ways of filing the papers in support of the bill electronically:
The note also confirms that the documents filed electronically must comply with paragraph 10 of PD51O and also with the guidance on PDF bundles published at the Judiciary.uk website.
Some of the recent cases showing how coronavirus has affected the law are outlined below:
The Judge in this case was considering an application for permission to appeal. The appellant could not attend Court because of coronavirus, nor could she attend remotely. The Court accepted the appellant’s submissions to be made by email.
The Judge in this case considered the Defendant’s submissions that a hearing should take place in person. Mr Justice Freedman concluded that the onus is on the party requesting a hearing in Court to provide reasons “why it would not be just for the hearing to take place remotely”.
The hearing was held remotely by Skype, “when towards the end, the recording stopped and would not restart. That turned out to be because” the Judge’s computer’s hard drive had filled to capacity and would accept no more Skype recordings. Master Gordon-Saker reserved Judgment.
The Claimant issued judicial review proceedings in relation to his medical treatment whilst in prison. The Defendant asserted that the case was without merit. The Claimant discontinued the claim. The Judge was considering the issue of costs arising from the Claimant’s notice of discontinuance. “The normal consequence of serving notice of discontinuance is liability to pay the costs of the Defendant…. Unless the court orders otherwise.” The Claimant asked the Court to depart from the normal rule because of the impact of coronavirus and to make no order for costs between the parties. The Defendant opposed the application. Mr Justice Spencer concluded that there is no good reason to depart from the normal rule that the Claimant pay the Defendant’s costs of discontinuing the claim.
It is clear from the cases outlined above that the Courts are willing to promote remote hearings. No doubt this will be a learning curve and some IT obstacles will have to be overcome. However, it is also clear that the Courts will not entertain deviation from the established law and practices simply because of the coronavirus. It is only just that the Judges should consider the impact of coronavirus but also consider the law.
Written by Nataliya Cahoon-dutta, October 2020.
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