18/03/2020

Of civil courts and public crisis

[update 19 March. This Message from the Lord Chief Justice to judges in the Civil and Family Courts has been sent out and published this morning. It emphasises the need to move to phone and video hearings wherever possible and to make arrangements to support social distancing. On possession cases and block lists, it says:

Possession Proceedings

It is likely that the emergency legislation will affect this area of work. But it is obvious that particular sensitivity is needed irrespective of that. Applications to suspend warrants of possession should be prioritized.

Block listing of possession claims is inappropriate at this time because it would be difficult to maintain appropriate social distancing.

Judges dealing with any possession claim during the crisis must have in mind the public health guidance and should not make an order that risks impacting on public health.

How this works out, we will have to see.]

As of today, 18 March 2020, the official guidance for the civil courts and tribunals in respect of the coronavirus is:

As long as you, or the people who are coming to court with you, do not have confirmed or possible coronavirus (COVID-19) infection or do not need to self-isolate in line with NHS advice, you should continue to use courts and tribunals as usual.

If you do have symptoms or are self-isolating then

you should contact the court or tribunal in which the hearing is due to take place. You can find contact details on Courts and Tribunals Finder.

(You are permitted a hollow and slightly despairing laugh at the idea of contacting the average county court in this way).

What this means in practice is a complete mockery of the government’s advice to all of us to practice social distancing, work from home, avoid gatherings of people and avoid use of public transport.

Possession lists have been carrying on, with say 30 cases on the list. Waiting rooms filled with 50 people, all of whom have got there on (sometimes lengthy) trips on public transport.

A duty possession scheme solicitor may see 15 clients, hurriedly. If there is time to wash hands between clients, court’s washrooms are apparently often out of soap. No hand sanitiser is available unless you bring it yourself (for it to be bare-handled by security on the way in) because HMCTS have determined it is not essential:

We want to be responsible in making sure that, given the shortage of hand sanitiser, we do not introduce its use where it is not necessary in a way which might reduce the supply where it is essential.

Regular court users and staff – solicitors, barristers, court staff ushers and security, and of course judges – are being routinely exposed to a degree of risk that the government has advised (and may shortly enforce) should be avoided by the public FOR THE PUBLIC GOOD.

Parties to cases or witnesses may well not turn up – whether because self-isolating, or quite reasonably concerned about the risks of travelling and crowds of strangers in an enclosed space.

Worse still, parties to cases, particularly those in person – say the tenants facing a possession claim – may feel they have no option but to attend (particularly if they’ve tried to call the court…) despite having symptoms.

Hearings and trials cannot simply proceed as if nothing is happening that might get in the way, and without any regard to the risks to the participants and staff (and of course to all they they are later in contact with).

Crown Court jury trials of more than 3 days have now all been postponed. In Scotland the Housing and Property Chamber has adjourned all hearings from 18 March until notionally 28 May. The Court of Protection is adjourning some maters and looking at increasing telephone and video based hearings. But the county courts continue to insist on as many people in an enclosed space as possible.

Lawyers have perhaps been slow to protest this. It might surprise non-lawyer readers, but by and large, turning up and getting things done, no matter what – personal illness, personal circumstances are usually put aside for the demands of the case and the court. The law comes first. And we – perhaps foolishly – pride ourselves on living up to that.

This may be the mentality affecting the senior judiciary and court service on this issue. But this is not about ‘carrying on regardless’, it is not primarily about the health and well being of the lawyers or judges (though it is that too), it is about a situation where we are being told and have to believe that gatherings of people and use of public transport presents a publc health risk.

I don’t profess to have easy answers. Certainly a lot of hearings could plausibly be done by phone conference (or video conference if HMCTS would be able to abandon the outdated technology and very limited facilities available in the civil courts), but trials would be much harder – and there is the principle of open justice to observe. These things may take a bit of thought, a bit of time and a bit of investment.

But in the meantime – maybe for a month or so – is it not time that all hearings requiring attendance at court are either adjourned, or where possible, changed to phone conferences (save for very urgent matters)?.  Not just for the good of court staff, judges and lawyers, or of parties and witnesses, but for the good of us all?

(And now the schools are closing on Friday, and it is heavily rumoured that London will be in a strict lockdown. The courts cannot just carry on as if it was business as usual, just with a bit cleaner hands.)

(Update. HMCTS has just published this – Guidance HMCTS telephone and video hearings during coronavirus outbreak.

This basically amounts to ‘we’re having a look at it’, together with:

we have also activated Skype for Business on all staff and judicial laptops. This change took effect today (18 March) and work is underway to train staff and judges as quickly as possible, as well as testing the technology to ensure it works for user.

Skype for Business is being killed by Microsoft on 31 July 2021. Adopting an obsolete technology with less than 18 months of operational life left is… less than encouraging.)

 

 

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.

12 Comments

  1. Luke Ridge

    It was surreal yesterday in a country that is almost entirely in lockdown to have my usual busy court desk list at Portsmouth. Long security queues for security as we’re asked to ‘check our own bags’ but heaven forbid they might have had soap in the toilets.
    Several clients were elderly or had serious health conditions, putting themselves at serious risk coming to hearings only for the housing officer not to attend.

    I feel the civil courts have been entirely forgotten in considerations.

    Reply
  2. Banjo Moomintoog

    Has anyone at the MOJ read the recent report from Imperial College (https://www.imperial.ac.uk/mrc-global-infectious-disease-analysis/news–wuhan-coronavirus/ ). Estimated 250,000 deaths if there is a mitigation strategy only? I gather the Admin Court has just announced it is considering telephone hearings but only for cases involving vulnerable individuals. This is bonkers. No question that at least those cases which don’t involve oral evidence should be done by telephone. From now.

    Reply
  3. AdverseTangent

    The Job Centre are still open and expecting people to go in and explain their job search too! Madness.

    Reply
  4. Richard D

    And as of this morning it’s changed:
    https://www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/

    “The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely. That will not always be possible. Sensible precautions should be taken when people attend a hearing. ”

    There are more details in the guidance itself.

    Reply
  5. Ben Reeve-Lewis

    Safer Renting have dealt with 3 illegal evictions in the past 2 days. Landlords all to aware of the suspension of evictions and voting with their feet. Use of force for re-entry hasn’t been possible for a variety of reasons, leaving plan B, emergency injunctions but communicating with courts, getting through on phones, negotiating the bureaucratic self-harming that IS fee remission claims getting an appointment to stand in front of a judge are all difficult enough in normal times. I have little faith in the Skype method or as you say Giles, just getting the court to answer the bloody phone, even if the best you get is a chippy “Computer says no” listings clerk on the other end.

    And with all of our recently evicted families being Part VII eligible, the homelessness unit is taking the hit.

    Arguing with landlords that they must follow due process or face prosecution sounds plain daft when due process has been suspended. I don’t have a witty comeback when they throw that one back in my face.

    Reply
  6. ML

    Just been stood down from a possession claim in Horsham on Monday. Apparently they have adjourned off all possession hearings until further notice.

    Reply
  7. Julie Isaac

    I have been told by my local county court that all evictions are being suspended for the foreseeable future. I had one cancelled one hour before it was due to go ahead. I assume that this is all courts and not just local to me.

    Reply
    • Giles Peaker

      It certainly isn’t all courts. The response has been wholly inconsistent.

      Reply
    • RD

      For what it is worth, I have heard – but not been told – that the local County Court is staying all PCOL and possession claims for the next 3 months (although we need clarification on a number of situations).

      We’ve also not waited for the bailiffs to start cancelling; as an organisation we have called off every eviction save where we believe the property is unoccupied (though if that belief turns out to be ill-founded, we’re calling the eviction off).

      If an eviction of an occupied property is to go ahead, it’ll require the approval of one of our Directors, which would require something significantly more than the non-payment of rent or a bit of late-night noise.

      We can worry about who owes us what in a few months’ time.

      Reply
  8. Ben Reeve-Lewis

    A colleague working at Newham council told me that The Housing Court sitting at Stratford Magistrates is only allowing litigants in, no McKenzie friends or observers. This may of course have changed since that phone call

    Reply

Trackbacks/Pingbacks

  1. Coronavirus: Guidance for Landlords and Letting Agents | GRL Landlord Association - […] numbers of people in waiting areas plus the travel required to get to a hearing (see for example here…

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.