Message from the PIBA Chair: 18 March 2020
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 [email protected].
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