Update from the PIBA Chair - 7 August 2020

Dear PIBA Members

I am writing to update you on what PIBA has done, is doing, and some future developments.

1. Covid-19 / courts lockdown / extended operating hours

We know the last four months have been incredibly difficult for many.

We have been heavily involved, working with the Bar Council, in lobbying HMCTS and the judiciary to get more Court work listed again.  Our position throughout has been that that should be achieved by maximising physical court use as much as is reasonably safe; using telephone and video technology as much as possible; calling up DDJs, Recorders and Deputy High Court Masters and Judges to tackle the backlog; and improving co-operation between courts and practitioners so that listing is effective.  There are a number of working groups and committees currently considering aspects of this, some reporting directly to the senior judiciary, some under HMCTS, and some within the Bar Council.  We have representation on all those which might have any impact on our area of work. 

Thank you for responding to our short-notice survey, if you did.  That gave us very useful information to put before the civil EOH working group, chaired by HHJ Godsmark QC, on which Sarah Lambert QC represents PIBA and civil practitioners.

Its report has gone to the senior judiciary, whose response is awaited, but we can share its conclusions which are that for civil hearings:  (i) capacity for in-person hearings in courtrooms is increasing;  (ii) the need for a nationwide roll-out of EOH as a result of Covid is not made out;  (iii) EOH should however be made available as a recovery tool to be deployed by DCJs where they consider it is needed and where it can be made to work;  (iv) feasibility should be determined locally taking account of court resources and need and after discussion with practitioners;  (v) DCJs should be able to set targets of backlog cases to be heard, and stop the use of EOH when those targets are met.

I attended a meeting with the Chair of the Bar and HMCTS this week at which that position was broadly confirmed.

We remain acutely aware of the risk that EOH may be used as a Trojan Horse to introduce flexible operating hours on a long-term basis.  And of the competing considerations of, on the one hand, the obvious practical problems and discriminatory effect of EOH and, on the other, the need for many junior practitioners to make up for the desperate shortfall in work over the last few months.  But we are optimistic that a proposal which places decisions in the hands of local DCJs (rather than HMCTS), which involves consultation with practitioners, and which would be time-limited, might strike the right balance.

2. Remote hearings and CVP

HMCTS are in the process of rolling out CVP as the standard platform for remote hearings in civil work.  We will be setting up a CVP training session with them for PIBA members.  Useful though the technology is, important questions remain over the extent of use of remote hearings in the future, after in-person hearings resume.  Emily Formby is representing PIBA interests on the Bar Council’s Civil Remote Working Group which will deal with this.

3. Swift v Carpenter

The Court of Appeal has reserved judgment on this crucial case concerning accommodation loss claims and the Roberts v Johnstone approach.  PIBA’s neutral submissions were heard as intervening party.  We do not yet have an expected date for judgment but Darryl Allen QC (who appeared for PIBA) will present a webinar on it for PIBA members as soon as judgment is out.

4. PIBA Guide to Pension Loss Calculation

James Rowley QC, Matthew White and a small team of PIBA members have written a unique, comprehensive and very practical guide to pension loss and its calculation.  Copies will be distributed free to all PIBA members through your chambers after the summer.  Templates for calculations are available on the PIBA website using the link in the book.  Irwin LJ says in his introduction that it will become indispensable.  I wholeheartedly agree.

5. Continuing education and webinars

The unfortunate cancellation of the 2020 Oxford Annual Conference directly led to the fantastic series of PIBA webinars since March which I hope you have all enjoyed.  Attending live allowed you to put questions, but they have been recorded and are all available to members on the PIBA web pages.  Huge thanks are due to each and every one of our speakers, and to Hannah Saxena and Marcus-Coates-Walker who ran the series behind the scenes and without whom it would not have happened.  We will be continuing to do our education seminars by webinar from now on.  Coming up in the autumn will be sessions on amputation claims, the Animals Act, Swift v Carpenter (see above) and others.  Details will be on the PIBA website.

6. The PIBA Annual Richard Davies Lecture 2020

In light of continuing Covid concerns, and the unlikelihood of being able to gather in large numbers even by November, we have had to take the decision to make this year’s Annual Lecture a remote one.  However that has given us the opportunity to consider a wider range of speakers, and we are delighted that the Honourable Justice Basten of the Supreme Court of New South Wales, formerly an eminent academic with an outstanding career at the Australian Bar, has agreed to deliver this year’s lecture on 10^th November 2020.  Further details will follow in due course.

7. Northern Conference and London Winter Conference

For the same reasons as for the Annual Lecture, we have taken the decision not to hold these events later this year.  They will however return in autumn/winter 2021.

8. Annual Oxford Conference 2021

Please put a date in your diary now for the weekend of Friday 26^th to Sunday 28^th March 2021.  After the enforced cancellation this year we are optimistic of being able to return to St Catherine’s College in Oxford for the PIBA weekend next year.  Planning is well under way, with some contingency planning for such Covid restrictions as might still be in place by then.

9. Legal Services Board Consultation

Thanks are due to John Meredith Hardy who wrote PIBA’s robust response to the LSB’s proposal for further regulation of our profession.  He identified very clearly the ways in which – at least in our area – we are already highly regulated and subject to market forces and to public and judicial scrutiny of how we work, such that no further consumer protection measures are necessary.

10. Discount on Facts & Figures

You should already have received an email from PIBA about the discount we have negotiated with Sweet & Maxwell on Facts & Figures.  Please use it, and we will endeavour to obtain further discounts on other practitioner texts.

11. What’s next?

Covid, the lockdown and our response to it have dominated PIBA’s work over the last few months.  As we (we hope) continue to ease out of lockdown, there will be work to be done on behalf of all of us at the PI Bar in dealing with the backlog of hearings, dealing with Extended and Flexible Operating Hours, and trying to extract and keep the best aspects of remote working which have been forced upon us in the last few months while regaining the benefits of in-person hearings, JSMs and conferences.  Also on PIBA’s radar are ethics guidance (including referral fees) and how PI practitioners fare in the QC appointment system.

I am enormously grateful to all the members of the PIBA EC who have been working on behalf of us all over the last few months.  I wish them, and you, a relaxing summer and hope you can enjoy time off with family and friends.

Kind regards

Steven

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