Message from the PIBA Chair: 3 April 2020
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