Saturday, 21 March 2020

COVID-19: Involved in Civil or Family Court Case or Dispute?


If you have an upcoming court appearance for a civil or family case in which you are involved as a party and, because of the virus, you want it to be put off,  you need to follow the guidance at https://www.gov.uk/guidance/applications-to-adjourn-civil-and-family-hearings-because-of-coronavirus-covid-19  The likelihood is that an inability to be physically present at the court as a result of you legitimately adhering to government health guidelines, will lead to the court allowing you to remotely participate in the hearing, for example, by FaceTime, Skype or even by good old blower, be it mobile or land line. Judges are being as creative as possible to cater for the current crisis and to do all they can to ensure that justice continues and that everyone entitled to a say has that say. It is possible that some criminal courts which are much larger than the civil and family court hearing rooms  will be utilised for non-criminal hearings so that there is a greater distance between everyone participating. It could help if you notify the other side about what you are doing and even invite them to agree. You should let the court know that you have done this and of any consent to an adjournment. 

It may be that, although you are not in a vulnerable class, you have  a terror of being infected by a physical court appearance. If that is genuine and cannot be overcome, you are still entitled to apply for an adjournment or remote hearing and a judge will decide on it. But I hasten to emphasise that you must be acting in a genuine way. Judges are adept at identifying litigants who are putting forced false reasons for an application and a history of evasion would impact on the credibility of the application.

The hearing goes ahead in your absence and without any remote participation by you and you are aggrieved by what the court has ordered? This may have happened because intense court pressures have prevented your adjournment application being considered in time, because the court was not satisfied that, in your particular circumstances, there was good reason for granting it or because there was some technical hitch which scuppered your remote participation. You can apply for the order to be set aside or varied and for a rehearing. If you did not participate as directed due to a technical hitch then you should apply to set aside within seven days of getting the court's order. If there was another reason then the court will generally expect you to have applied promptly on finding out what the court has ordered (promptly is not defined but if you want longer than around seven days then you may be denied) and to establish a good reason for not turning up or participating remotely as directed and that you have a reasonable prospect of succeeding at a rehearing.

Procedural rules or  court order may require you to take a certain step in proceedings within a specified time which you cannot do for some good reason associated with the virus (for example, inability to obtain essential legal advice or essential documentation). Notify the other side and ask them to agree to your time for compliance being lengthened. If they agree, copy in the court. If they do not agree, apply to the court for more time. Should the other side be unhelpful and it's a defence to a civil claim you need to put in then, at the least,  put in a 'holding defence' ('I dispute the claim. I will file a detailed defence as soon as I can. I am prevented from doing this now because (insert reasons).' This will stop a default judgment being entered against you.

There are strict time limits for starting civil claims which normally range between one to six years from when your right to claim arose (see my book Breaking Law at chapter 10). These may not be extendable. The claim form may be relatively straightforward. It's the Particulars of Claim which could be more problematic for you. Carry on and start the claim in time and send the other side the Particulars of Claim within 14 days of them getting the claim form. If you need longer, either get them to agree in writing or apply to the court for an extension. Where using Money Claims Online, you will have the option to state that the 'detailed' Particulars of Claim will follow.

It may be that these unprecedented times will soften hearts or otherwise change perceptions to legal disputes and that they present a landscape for compromise which was not previously present. Why not try and settle your proceedings or legal dispute? If you do, write to the other side marking your communication 'without prejudice' (see Breaking Law at chapter 8).  This will protect you being prejudiced by anything stated in the letter if the case does not settle. 'I am writing to you in the spirit of compromise in these times of great difficulties for all of us. I would like to propose that the claim to which we are parties is settled as set out below. I will remain willing to settle on these terms for a period of 14 days from the date of this letter. If not accepted within this period then these proposals are withdrawn but you are at liberty to ask me to consider extending this period if you need a little more time."

In relation to financial remedy applications in the course of matrimonial proceedings,  some hearings at  which the court investigates and encourages a settlement - they are called financial dispute resolution appointments - have already been held remotely and this will continue. However, the impact of the virus may well dramatically alter the financial circumstances of the parties and hinder a settlement for the time being. Where the court system has become clogged up and the parties are anxious for a decision without undue delay, an application can be halted to allow an arbitration hearing out of the court system which would be binding on the parties.   

Be well.