21/03/2020

Law in the time of Covid – Court duty work

What follows is the text of a twitter thread by Simon Mullings (@spikemullings), a housing lawyer and duty scheme advisor, arising from events on a duty session for a possession list last Friday 20 March. Reposted with permission. Following on from our previous post on the civil court’s (lack of) response to Coronavirus, it seems no immediate steps have been taken, at least not across all the county courts. There are reports of different areas doing different things – some suspending lists and hearings, others going ahead despite the LCJ’s statement. Simon’s account shows starkly why immediate steps are required. Our best wishes are with Simon (and all the court staff and attendees involved) for their health.

 

Court duty work – a long thread from the front line.

While there have been some welcome developments on the civil side, there is also much clarity needed from the Court Service and others to protect clients, court staff and lawyers dealing with urgent court business.

Events at court yesterday are illustrative of the problem and decision makers need to be aware how things work on the front line. While I havered over posting this, it might be necessary to set out the reality of duty work. Clumsy twit-work I’m afraid, but I hope of use.

I was on housing court possession duty. My job is to represent anyone facing a hearing to determine possession of their home or applying to stop themselves from being evicted from their home.

The day’s list was not busy. I had the opportunity to speak to the judge beforehand about guidance issued by the Lord Chief Justice as to block lists of possession cases – to be avoided.

It was confirmed that the court had not at that point any further guidance beyond that. The morning was quiet. The afternoon list consisted mainly of applications to suspend warrants of eviction. I had two clients come to see me.

The last client came into the small windowless duty adviser’s room – 3m by 3m? – and sat the other side of the desk.

It very quickly become clear that they were extremely unwell. They were sweating profusely, complained of hot flushes and a sore throat and were clearly very distressed. They explained their partner was at home also very unwell. They had placed their documents on the desk.
It is necessary to now set out this client’s dilemma. They were facing imminent eviction from their home. They had been directed to bring evidence of previous medical problems. Had they not attended court yesterday there is no doubt their eviction would have proceeded.
They and their family would have been evicted and forced to move around trying to find accommodation – going to agents, attending viewings, going to the council offices, possibly seeing if they could sofa surf while trying to find somewhere.
Not exactly consistent with public health guidance and in that context the decision to risk limited exposure to others at the court is perfectly rational.
They were distraught and mortified that they had come to court being ill but they did not know what else they could do.
I don’t see how they could do anything else.
I had about 5 minutes in the room with them and then with the assistance of the excellent court staff, we moved him to another empty room. I took photos of his documents – possible breach of GDPR, mea culpa – which I manipulated with my pen.
The hearing itself was conducted with me speaking from the back of the court to make sure I was not near anyone, and just the advocate for the other side in court, not their client.
I am happy to say the warrant was stayed without the client needing to be present in court. However, that was on the basis that they brought the documents as directed, but a fair hearing of the issues could not take place because they could not be brought into court.
I think that was exactly the right outcome, managed well by an extremely able Deputy District Judge and experienced court staff. Client was informed of the outcome, what they had to do next and sent home. I will write to them with advice.
But this should not have to happen again.
The court duty room was then closed with notice that no-one should enter, as was the other room in which my client was placed.
I had another case to do (from the back of the court – an application for an order for re-entry on grounds of oppression on the part of the court in executing a warrant, successful, and again preventing someone from having to be sofa-surfing during a pandemic.
I had to wait in the corner of the court waiting room well away from everyone else. I found it perfectly understandable that there was some anxious whispering and staring at me, but I confess it was not a comfortable experience.
Those who had seen the rooms being shut up wanted to ask me – at a distance – what was going on and the court usher had to field a great deal of their understandable anxiety as well.
So at the moment I am well, but while this situation is not really covered by guidance, it seems sensible after those events to self-isolate for 7 days.
As my pal and colleague @Andrea_Qw wryly put it, ‘that’s one duty adviser burned through, how many more to go?’
Of some comfort is that we have been informed that there will be no more block lists in the London courts for a period pending further guidance. However, we have about 1 ½ months’ worth of block lists still in the court diaries.
There is no clarity yet as to how they will be dealt with. Desperate people will still be turning up at court trying to save their home.
My view is that further guidance urgently needs to take account of (i) how court duty works and (ii) the desperate dilemmas faced by those at risk of losing their home. Hence this long boring thread.
Any further guidance needs to ensure that those facing eviction or homelessness have some form of AUTOMATIC RELIEF such that they are not potentially breaching public health guidelines by having to go to courts and council offices and other public places.
This protects them, but also the wider public.
At the same time, we would hope that the public will want there to still be a court duty service when proceedings are up and running again. The @LegalAidAgency must arrange that orgs reliant on court duty income still receive equivalent income to see them through.
All of the above goes equally for work done by colleagues on the criminal law side. Duty solicitors at Police Stations and maybe more pertinently Magistrates’ Courts are, as far as I know, still being required to conduct ‘business as usual’.
I have no experience in that work but even from my position of ignorance I cannot see how that can be consistent with public health guidelines.
As far as I can gather an adviser in the Mags faces exactly the same problem of clients being required, at pain of great loss to themselves, to attend court and upon whom the adviser must attend without anyone in that court building knowing whether they are ill, asymptomatic or not and not having any way of avoiding contact.
The issue, as with the housing possession cases, is the proportionality of ‘business as usual’ attenuated by some rather vague guidance, in a time when the outcomes can be homelessness, accommodation hunting and sofa surfing on the civil side, and loss of liberty into a dysfunctional prison and probation system on the criminal side. Just one of many many examples here:

Mitch Cohen@MitchCohen12

I have a defendant aged 70+ who is in for PTPH on bail for an offence allegedly committed 30 years ago (you can guess what) who was self isolating but has been told he is required to attend on Monday or will be in breach of bail.

Add to that the procedural requirements to bring people into contact with each other in court building and the obvious problems caused there, of which I now have first-hand experience.
Remote hearing technologies will, in my view, prejudice the vulnerable (I use vulnerable in the widest possible sense of the word) unless used in a way that favours relief for defendants in the public good.
So I am asking for decision makers to
(i) ensure they make themselves fully aware of how the front line works;
(ii) to consider what response from the justice system is proportionate to the crisis; and
(iii) to make clear decisions which protect clients, court staff and all my colleagues, and to do so quickly.
Please stay well and look after each other.
Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

4 Comments

  1. Lawyerhousing

    Not block booking is not a welcome solution. It still means the Defendant coming to court and putting those at court and their families at risk, and it will render the duty scheme impractical to spread hearings over a longer period. Only adjournments to possession hearings as some courts are practising are the answer. This should be a national approach, not a postcode lottery.

    Reply
  2. Commenter

    I had a very similar experience to this on possession court desk. Also an application to suspend a warrant.

    Reply
  3. G Jones

    All possession lists have now been adjourned generally with the proviso that a C can apply for reinstatement of a particular claim if they wish. No further bailiff evictions are taking place until the end of April.

    Reply
  4. speyejoe2

    An email from a Bailiff Manager at a County Court on Friday stated:

    ” Guidance from the government. Due to the Covid-19 emergency, all bailiff activity, including all evictions, has been postponed until further notice”

    In this city the average time between applying for a warrant and bailiff carrying out the eviction is 11 – 13 weeks.

    Reply

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