Posted by Steven Snowden QC · May 20, 2020 9:45 PM
This is my update on what PIBA has been doing in the last two weeks as lockdown has continued.
The Civil Justice Council commissioned a rapid consultation on the effects of Covid-19 and the lockdown on civil justice generally, with a focus on remote hearings. Thank you to those of you who responded to my encouragement and submitted your own survey responses to that. We attended a (remote) meeting with the researchers and then submitted a paper on behalf of PIBA as a whole. A copy can be found here. They are due to report on Friday. We will take stock of that when they do.
PI hearing numbers
Quite separately, we are working with the Bar Council to try to assess the downturn in PI hearings, (i) so that the true picture can be seen and pressure applied to HMCTS and others to increase the numbers, and (ii) so that the Bar Council can continue to illustrate to government the problems the profession is facing from the downturn in civil work and try to improve government financial assistance. Several sets of chambers helped us with data from which we can conclude that, overall, hearing numbers are down by about 50% across the whole period. Even allowing for a modest improvement in the last three weeks, hearings are still down by about 43%. Our analysis is here. We will deploy it as far and as forcefully as we can. Huge thanks are due to Anna Symington and Gareth McAloon for their work on this.
We have been working with the Bar Council to try to get civil listing priorities for the County Courts adjusted, so that more hearings take place. Some success can be seen in the revised priorities from 18th May (here) but we will continue to press for further revisions so that, for example, there is a positive presumption that CCMCs etc should take place. We are told that the senior judiciary are alive to the threat to the livelihood of the junior Bar, and they have asked for continuing feedback on listing priorities, which we will give.
Local guidance and protocols
Most DCJs are grappling with the ongoing lockdown as best they can. Some have set up local working parties for listing and remote working. PIBA has members on those. We have been making suggestions based on your feedback to us. In the last few days we have had revised protocols or guidance from DCJs in Manchester, Birmingham and the West Country. The Manchester one is comprehensive, and includes useful suggestions on remote advocacy and conducting video trials. Those and other guidance documents are all on the PIBA website here. Please familiarise yourself with them.
We have all had to become familiar with Teams, Skype for Business, Zoom, Starleaf and more. HMCTS have accelerated the roll-out of their own, bespoke video hearing system CVP (Cloud Video Platform). Mostly used in criminal courts so far, we are trying to find out details of its introduction in our sphere. Some of you may have used it already. We will let you know more, and provide training, when we can.
Since I last wrote, HHJ Melissa Clarke, Jayne Adams QC, Simon Fox QC and Mr Justice Edis have all undertaken live-streamed webinars for us. They were all excellent, and we are very grateful. They can be watched here. Next week’s webinars on the Ogden Tables (by Emma Corkill) are over-subscribed and you will have been emailed about the waiting lists already. On 3rd June we will have David Heaton QC and James Rowley QC on provisional damages. On 17th June Charles Bagot QC, Huw Davies and James Prestell will talk about remote negotiations and hearings - latest developments and practical tips. Please join us for those.
Steven Snowden QC
Posted by Steven Snowden QC · May 04, 2020 12:24 PM
The Civil Justice Council has just announced a review of the changes necessitated by the Covid-19 lockdown, and in particular the use of remote hearings.
The link is here.
It asks for responses from individuals, so can I please encourage you each to respond. The deadline is Friday 15th May. We we also be seeking ways to have PIBA’s collective view heard as part of this review. It is vital that we all have our say about the current and future arrangements.
On Wednesday this week at 4pm we have Her Honour Judge Melissa Clarke giving us “A view from the Bench”. Please could you send any questions you would like Her Honour to answer to [email protected].
And on Thursday at 4pm we have Jayne Adams QC’s “Quantum Update”, deferred from 22nd April when issues beyond our control with the MS Teams platform prevented it taking place.
Links to join each of these webinars will be emailed directly to you.
Steven Snowden QC
Chair of PIBA
Posted by Steven Snowden QC · April 20, 2020 5:27 PM
Posted by Steven Snowden QC · April 09, 2020 6:00 PM
The very first thing I should do is thank and pay tribute to my predecessor, Darryl Allen QC, for his leadership over the last two years, and in particular his very public leadership and investment of time over the last few weeks. And the second is to thank Sarah Crowther QC for stepping up to be Vice Chair alongside me for the next two years.
Thank you too if you were able to attend our virtual AGM on Monday. It was interesting to see that we had more people logged in this year than typically remain for the AGM on a Saturday afternoon in the lecture theatre at Catz during the Annual Weekend. Perhaps something to consider for next year.
As I said at the AGM, it is sobering to note that PIBA has just turned 25 years old - formed in 1995 in response to the introduction of CFAs which, at the time, were feared to be the greatest threat to its existence that the PI Bar had ever faced. Now, aged 25, we’re facing other threats, but I am convinced we will work through them.
If you were unable to attend the AGM, I am emailing to let you know what PIBA is doing, and will do.
Action in the short term
(i) Covid-19 and the Courts lockdown
Now that we have got over the immediate shock, and can see that different courts are in different ways revising their systems and trying to work out what they can still do, our priority will be to try to keep as much PI work as possible going.
I fully recognise the concerns articulated by some PIBA members and some in the judiciary that HMCTS might use success in “coping” with remote hearings now to drive through a programme of closing courts, reducing judicial numbers still further, and replacing in-person hearings with remote ones when we get back to “normal”. Judicial concerns are beautifully expressed by an anonymous family judge here: http://www.transparencyproject.org.uk/remote-justice-a-judges-perspective/ I agree with those. The successful undertaking of a remote commercial trial, widely publicised by those who were involved, does not for one moment mean that justice would be done in many of the sort of cases we do, if they were to be tried by video-link.
But there were already many aspects of our interlocutory work which were done by phone, and many more could be by phone or video. With careful thought and pre-planning, we would expect that, at least in the interim, most applications and CCMCs could be. Also Stage 3 assessments and the more straightforward of the Fast Track trials. And, where the parties can agree and technology permits, some of the more complex hearings and trials. We recognise that PIBA members will want as much of our work as possible to continue.
To that end, I’ve written to all the DCJs to ask that PIBA is kept updated with their local directions and announcements. We will share that information as a resource on the PIBA website. We have offered to them all that we will engage in trying to set up workable protocols to keep our cases going through the Courts. Not all have yet responded, some have warmly, some lukewarm. We will keep you updated.
I am inviting PIBA members to give us feedback from next week, through our Circuit Reps, about how local Courts are working in PI cases, and suggestions for improvement.
Those Circuit Reps are:
North Eastern: Stuart Jamieson - [email protected]Western: Rachel Russell - [email protected]Midland: Gareth McAloon - [email protected]South Eastern: Meghann McTague - [email protected]Northern: Matthew Hooper - [email protected]Wales and Chester: Theo Huckle QC - [email protected]
They will collate replies so that we can see what is happening and take appropriate action.
(ii) Continuing education
Huge thanks are due to those who had planned our Oxford weekend, those responsible for the seminars which were in any event planned for this term, and the speakers, for working together and pulling off the magnificent feast of continuing education by webinar which we are now enjoying. Details are on the website.
Action in the medium term
At the AGM, I set out what would (in normal times) have been some of our priorities for the next two years.
- Getting PIBA represented more strongly on the Bar Council, the Civil Justice Committee, the CPRC, etc - not to seek positions for their own sake but so that we can try to get ahead of the game, see what reform proposals are coming our way, and by being involved at an earlier stage perhaps remove some of the problems.
- Improving our communications with PIBA members. Updating the form and content of the website to make it more user-friendly and make it a go-to resource for PI practitioners. Updates to members about what PIBA is doing, not just about events.
- Carrying on and building upon our excellent education and training. Embracing the video technology and recording of seminars which have been forced upon us. So far as possible, extending that to our other events and lectures. Increasing the number of seminars on soft skills, ethics, wellbeing, practice-building and practice management which have been so well received to date.
- Maintaining our focus on the junior PI Bar, as that is where the pinch is felt with every set of reforms which has been proposed to date.
- Not being afraid to intervene as an SBA in appropriate cases, but ensuring that we have crystal-clear aims, objectives and limitations when we do.
That’s it ...
Apologies that this has been a long email. Well done for getting this far!
We will keep you updated over the next few weeks.
Steven Snowden QC
Chair of PIBA
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