Posted by Darryl Allen QC · April 03, 2020 1:06 PM
Dear PIBA Member
Mass adjournments and CFA fees
It is understandable that the Courts have been forced to adjourn trials en masse over recent weeks. However, one consequence of adjourned trials is that unless a settlement is agreed, those cases cannot be brought to a conclusion. The pressure of a looming trial often focusses the mind in negotiations; if an agreement cannot be reached then there has to be a trial to decide the outcome. Without a “win” CFA fees cannot be recovered. In FT cases that is payment of fixed costs; in MT cases it is at least a payment on account and the expectation, sometimes sadly only a hope, of getting a proportion of that payment for your fees. If the Courts continue to adjourn trials then that problem will shift from a blip in income and cash flow to become a significant problem.
PIBA has raised this issue with the Chair of the Bar, Amanda Pinto QC, and the Vice Chair, Derek Sweeting QC. They have acknowledged the importance of this and will be raising it in their ongoing discussions with government.
What can we do? All that we can to enable trials and other hearings to go ahead. Spend time and effort mastering our telephone and video-hearing skills. Come up with practical solutions which will allow hearings to proceed. Be proactive: identify in advance those cases which could be dealt with remotely, whether by telephone or video, and co-operate with our opponents to make the hearing work.
PIBA will keep pushing for the Courts across the country to improve their systems for remote hearings so that trials and other hearings can continue.
HMCTS listing priorities
You have probably already seen the original HMCTS listing priorities for “work which must be done” and “work which can be done” at this time. HMCTS has published a new version of that document today which can be found here. They only apply to work in the County Court. As far as we are aware, there are no published listing priorities for the QBD or the District Registries, where cases and hearings will be assessed on a case by case basis. The only change to the County Court listing properties would appear to be that they now include “Applications or hearings pursuant to the Insolvency Act 1986 which concern the survival of a business or the solvency of a business or an individual” as Priority 2 work. This would not appear to affect the work of PIBA members.
Many of our hearings are included in these listing priorities. The key is whether the hearing is urgent or not. For example, an urgent Multi Track interim payment application should be treated, subject to triage, as Priority 1 not Priority 2. Similarly, a “living meso” Multi Track hearing, although not expressly listed, should be a Priority 1 hearing if it is agreed that it is urgent, although again that is subject to triage.
If you want to try and get a County Court hearing listed then refer to these published listing priorities.
E-bundles and paperless working
Many of us are used to working with e-bundles; many of us are not. PIBA has slotted in an additional webinar on 9th April covering “Paperless working”. If you haven’t already mastered paperless working then it is a must attend session; if you think you have mastered paperless working there is still bound to be something you can pick up.
Some judges are adept at paperless working and using e-bundles. Others are not. One point that has been made to me by the DCJs and other Judges is that remote hearings are exceptionally difficult without well organised and focussed e-bundles. You cannot now “hand up” a better quality photocopy of the photograph of the vehicle damage [although I acknowledge you could email it!!!!]. Judges will not have access to the Court file to dig out missing documents or be able to ask the usher to chase up the missing bundle. Take the time to ensure that the Court has a well organised, indexed, book-marked and paginated e-bundle with the documents which are truly relevant/important. Provide a sensible reading list. I would advise against 2,000 page bundles where the parties are only ever going to refer to 50 pages at most!
Many of you will be doing this already. If you are not, I would encourage you to do so.
The PIBA AGM
We will be holding the online PIBA AGM [via Teams] on Monday 6th April at 4:30pm. Instructions will be issued how to join and how to participate using the online chat/Q&A functions.
I know how busy you are and how tempting it will be to carry on drafting that Schedule in your “loungewear”. However, please try and find the time to attend. You may have questions about what we have been doing and what we plan to do in response to the challenges faced by the Bar/PI Bar in the COVID19 pandemic. You might be able to contribute to that discussion; at the very least you will hear the discussion which may give you some useful information to take back to your chambers and your Circuit. There may be other issues you wish to raise. It is an opportunity to connect with colleagues inside and outside of your Chambers, even if only remotely. We will also complete the election of the new Chair and Vice Chair. The former will outline his/her agenda for the next two years.
The DCJ for Greater Manchester has issued guidance on “Covid-19 Orders, Temporary Procedures and Listing Priorities”. Whether you are practising in and around Manchester or not, these are well worth a read. They provide a very useful template for how to work with the Court to get remote hearings listed and to have effective and successful hearings. That guidance and the relevant directions can be found here.
This is probably my last message to you as PIBA Chair. Thank you all for your support over the last two years. Special thanks to the members of the PIBA Executive Committee, in particular Steven Snowden QC, Vice Chair and Chair Elect, who have all done such fantastic work to protect and further the interests of PIBA members.
Have a good weekend and stay safe.
Darryl Allen QC
Chair of PIBA
Posted by Darryl Allen QC · March 24, 2020 10:23 AM
Dear PIBA Member
The Bar Council has published its own updated guidance this morning regarding attendance at Court following the Prime Minister’s announcement last night.
The guidance can be found here. Of importance to personal injury practitioners it includes the following:
Civil or Family Courts: you should not attend in person unless the hearing is genuinely urgent and it cannot be done remotely. Such a hearing will be a rare occurrence.
Please read and familiarise yourself with the guidance.
Darryl Allen QC
Chair of PIBA
Posted by Darryl Allen QC · March 24, 2020 7:01 AM
Dear PIBA Member
CIRCUIT LEADERS' ADVICE: DO NOT ATTEND COURT UNLESS ESSENTIAL
I understand that all Circuit Leaders have spoken to their Presiding Judges in the light of the Prime Minister’s latest announcement.
The Leaders of the Northern Circuit, the South Eastern Circuit, the Western Circuit and the North Eastern Circuit have all issued clear and unequivocal advice to the following effect: DO NOT ATTEND ANY IN PERSON COURT HEARING TODAY UNLESS IT IS ESSENTIAL THAT THE HEARING PROCEEDS IN PERSON. I have also been in touch with the Leader of the Midland Circuit who has confirmed that the position is the same on that Circuit.
This advice applies to the County Courts. It will remain in force until further notice. The advice does not specify it but by extension it must apply to hearings in the District Registries which occupy the same physical space as the County Courts. All hearings should be conducted remotely unless (i) there is genuine urgency, (ii) the hearing cannot take place remotely, and (iii) the hearing is truly essential.
My advice to you is to follow the advice of the Circuit Leaders. Their advice is clear: DO NOT ATTEND COURT FOR A HEARING UNLESS IT IS ESSENTIAL THAT IT GOES AHEAD IN PERSON. If you have any questions or are uncertain as to whether your hearing is going to go ahead then contact the Court. Some Courts have already closed.
The Leader of the Western Circuit has advised, regarding County Court cases, “All cases presently being heard should be adjourned part heard so that arrangements can be made, where possible, to conduct the hearing remotely.” That makes obvious sense and is likely to be followed. I suggest you make urgent contact with the Judge conducting your hearing if he/she has not already been in contact with you.
I will provide further information as soon as I have it.
Darryl Allen QC
Chair of PIBA
Posted by Darryl Allen QC · March 23, 2020 12:22 PM
Dear PIBA Member
Key worker status
The Chair of the Bar has issued an update on whether barristers qualify for key worker status during the COVID19 outbreak - here. This follows discussions with the MOJ and the Department for Education. The emphasis appears to be on the frequency/imminence of participation in Court hearings. Barristers must assess for themselves whether they fall in the category of key worker and, if so, whether they can nevertheless keep their children at home or need to send them to school.
Please read the Chair’s update and the clarification from the MOJ/Department for Education.
The Master of the Rolls, the President, the Chancellor and the Senior Presiding Judge have issued a Protocol for Remote Hearings in Civil Proceedings. That document is on the Judiciary website and can be found here. Paragraphs worth highlighting:
10. In the present circumstances, the court and the parties and their representatives will need to be more proactive in relation to all forthcoming hearings.
12. It will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely. Some witness cases will also be suitable for remote hearings.
16. Judges, clerks, and/or officials will, in each case, wherever possible, propose to the parties one of three solutions:-
(i) a stated appropriate remote communication method (BT conference call, Skype for Business, court video link, BT MeetMe, Zoom, ordinary telephone call or another method) for the hearing;
(ii) that the case will proceed in court with appropriate precautions to prevent the transmission of Covid-19; or
(iii) that the case will need to be adjourned, because a remote hearing is not possible and the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time.
Please familiarise yourself with the Protocol.
Some of you may have seen that the DCJ for Manchester, HHJ Bird, has issued Guidance which applies to civil hearings in the County Court and the QBD in Greater Manchester. You can download that Guidance here. I understand that the DCJs for Liverpool, HHJ Wood QC, and for Bristol, HHJ Cotter QC, will be issuing something similar shortly. I am writing to all of the DCJs to find out what arrangements are being made locally to implement the recommendations in the Lord Chief Justice’s advice and in the national Protocol to avoid in person hearings whenever possible.
The PIBA training and education team are putting together a Webinars programme for the coming weeks. We will be announcing the details soon.
I will keep you updated as soon as I have any other news.
Darryl Allen QC
Posted by Darryl Allen QC · March 23, 2020 12:20 PM
Dear PIBA Member
Like you, PIBA has been carefully monitoring advice from Government and Government Agencies on COVID19. We are in contact with the Bar Council leadership team, the Circuit Leaders and the other SBAs. PIBA endorses the advice given by the Bar Council which is available on the Bar Council website; the latest bulletin can be found here. That advice continues to evolve in response to Government announcements; I would urge you to check it on a regular basis.
The Bar Council is pushing for clarity on listing of hearings. The Lord Chief Justice announced yesterday that any new Crown Court jury trial not expected to complete within three days will be adjourned; that arrangement will be kept under review; existing Crown Court trials will continue in the hope that they can be completed, although obviously that too will be kept under review. The Lord Chief Justice’s announcement can be found here.
As yet there is no clear guidance in relation to civil trials. The Lord Chief Justice’s latest announcement regarding civil hearings and trials can be found here, and is as follows,
The latest guidance from government on how to respond to COVID-19 will clearly have an impact on the operation of all courts in every jurisdiction. It is not realistic to suppose that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt.
We continue to work closely with others in the justice system, including the Ministry of Justice and HMCTS, to work through the implications of the developing medical position for the operation of the courts.
Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility.
Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.
The Bar Council’s latest advice on self-isolation and having to return/withdraw from a case is as follows,
As well as speaking to the Ethical Enquiries Service, it is vital that barristers follow government advice, for example on when to self-isolate. One consequence of self-isolation is that barristers may have to return instructions. Our analysis suggests that there are circumstances under which a barrister should be able to respond to any need for isolation without breaching the Handbook.
Each barrister, however, must take responsibility for assessing their own ethical position, based on the facts, considering government advice and taking a risk-based approach. If you have a query about any ethical issues, please contact the Bar Council’s Ethical Enquiries Service. Full details of the EES are available on the Bar Council website.
Whilst any decision by the independent regulator, the BSB, would be based upon the specific circumstances of the matter in hand, the Bar Council’s initial view is that there would be no cause for disciplinary action if there has not been a breach of the Handbook.
The Chair of the Bar’s latest email provides the following valuable confirmation,
We are grateful that the BSB has now confirmed that if a member of the Bar decides that, in line with government advice, the risk to their own health or to those close to them or to others at court, warrants not attending court, they will not be in breach of the Handbook.
As set out above, no blanket instruction can be given as to what to do; every case has to be assessed on its own facts and circumstances. If you have any concerns about attending Court or a Tribunal then do not hesitate to contact the Bar Council Ethical Enquiries Service for advice. The Enquiries Service can be contacted on 020 7611 1307 or email Ethics@BarCouncil.org.uk.
We are pushing the Judiciary and HMCTS for better information.
We must all follow Government advice and work from home to the fullest possible extent. I would urge you all to explore the possibility of conducting your hearings by telephone or video-link wherever possible. I expect the Judiciary to be receptive to those requests and am aware that such requests are already being accommodated. The same applies to conferences and joint settlement meetings. Many solicitors and Insurers already have travel bans in force – you should feel able to insist on attending a conference or JSM virtually if at all possible.
There are many web-based video meeting providers. A number of them are providing free trial offers (examples are GoToMeeting and Skype for Business, but there are others). The technology works very well if you have a decent internet connection. I would urge you to make use of these products. Trial them with colleagues to get used to them; speak to colleagues, inside and outside of Chambers, for recommendations and advice. In advance of conferences and settlement meetings, test the technology with your opponent/professional clients on a “dry run” and agree an informal protocol as to how the communications will work. Taking a little time to do that will avoid difficulties and stress on the day. Please be aware that many of these products have a ‘recording’ option so consider whether you are prepared to be recorded or not.
Please let me know if you have any successes or failures in your remote working experiences; we are all, to differing extents, learning as we go and information sharing via PIBA messages could be a useful resource.
We would remind all members to ensure that their remote working arrangements are GDPR compliant. Useful advice as to steps to be taken to ensure compliance can be found here.
Sadly we have been forced to cancel the Annual Conference, PIBA’s flagship training [and social] event. It is unlikely that there will be opportunities to physically attend training events in the coming weeks. We will therefore be broadcasting webinars for PIBA members to fill that training gap and to provide an element of social interaction. Our intention is to arrange this via web-based video meeting providers and we will notify of you of dates, times and topics as soon as we have a programme in place. We are hoping to start this very soon and that you will make a particular effort to attend virtually to increase contact with others during these difficult times. If Courts are closed altogether we will endeavour to increase the number of webinars.
Financial and wellbeing
PIBA is also acutely aware of the potential financial and wellbeing implications of the current situation. The Bar Council is doing all that it can to secure financial support and adjustments with HMRC for the profession. Speak to your Clerks, Practice Managers and Management Committees about what steps, if any, can be taken to ensure continuity of work and income.
On the issue of wellbeing, we must all do our utmost to look after our physical and mental health. It is also a time to do what we can to support our colleagues, be they barristers, clerks or other staff. Increased working from home runs the risk of social and professional isolation, and negative impact on mental wellbeing. Setting up informal WhatsApp groups or arranging to speak to colleagues during the week are small but valuable steps to ensure we have regular contact. Do not be afraid to ask colleagues for advice or support.
The Bar Council’s Wellbeing website is an excellent resource. I would urge you to access it, even if simply as part of your CPD programme.
Lastly, if you have any ideas for ways in which PIBA can assist over the coming months, please do not hesitate to let me know.
I will keep you updated as and when I have more news.
Darryl Allen QC
Chair of PIBA