PREPARING FOR REMOTE HEARINGS ON THE SMALL CLAIMS TRACK DURING THE COVID-19 PANDEMIC:
A GUIDE FOR INSURANCE INDUSTRY ROAD TRAFFIC SOLICITORS
(2nd EDITION, 27TH APRIL 2021)
The suggestions and remarks that follow are intended to assist solicitors’ file handlers preparing road traffic claims on behalf of insurers to adapt their experience of litigation on the small claims track to the procedures and constraints now imposed on court practice by the Covid-19 virus.
PRACTICAL DO’S AND DONT’S
- Do check all existing directions thoroughly.
- First and foremost check all the directions made by the court in the individual case that you are handling. Many of these will give the court’s applied interpretation of Civil Procedure Rules (“CPR”) Practice Direction 51Y Video or Audio Hearings During the Coronovirus Pandemic, 24th March 2020, in force the following day, and the guidance issued by the Judiciary of England and Wales two days later: Civil Justice in England and Wales Protocol Regarding Remote Hearings 26th March 2020. The court’s directions should always be adhered to and must take precedence over any of the suggestions advanced on this web page. As well as CPR Practice Direction 51Y and the Judiciary of England guidance, general reference may be made to CPR Practice Direction 23A, paragraphs 6.1 – 6.10 of which deal with Telephone hearings and to CPR Practice Direction 32 Annex 3 paragraphs 8 and following which address video conferencing.
- Do try and narrow the issues that the court is required to determine.
- Narrowing the issues will always help. In a road traffic accident (“RTA”) that is a “bent metal” only case there will often be an Audatex report which details figures that can form the basis of an agreement on quantum.
- Do check the court’s directions in the case that you are handling for any provisions about preparing the bundle and the time limit for filing and service of it;
- Don’t prepare a bundle just comprising of your own client’s documents unless specifically directed by the court to do so – for example you represent a defendant sued by an unrepresented claimant – unlikely in an RTA insurer case;
- Do engage with the other party or parties to agree the contents of one single bundle which includes the documents of all parties in the case.
- Do paginate the bundle, and do so electronically if you can, alternatively make it electronically searchable;
- Do paginate the bundle in one single consecutive numerical sequence from start to finish;
- Do make sure that all your witnesses receive the bundle, as well as your counsel or other advocate. This must be in good time before the remote hearing;
- Do pay particular attention to the quality of any photographic and sketch plan evidence that may need to be included in a bundle so that personal injuries, or “bent metal” damage can clearly be evaluated;
- Don’t prepare a bundle divided into several sections that each have their own separate pagination and/or lettering system; and
- Don’t duplicate an electronic bundle with a paper one.
A single bundle
- It is most important that there is only one, definitive, paginated bundle and the contents should be agreed, usually by the Claimant’s representative, with those acting for the Defendant. It must be remembered that it not only the judge and legal representatives who will have to be able to consult the bundle during the hearing. It is important that the lay witnesses, many of whom will be having their first experience of a court hearing and will not have any background in court procedure, can also do so effectively. Lay witnesses will be joining the hearing on whatever device they have. This may be no more than smart ‘phone. The process of consulting the documents, for example whilst being cross examined, is much harder and potentially confusing for them if there are two (or more) bundles, or a complex section and pagination system. Bear in mind also that witnesses may have other downloads to consult during the hearing, including in a “bent metal” RTA, closed circuit television footage (“CCTV”).
- Guidance on the preparation of bundles applicable in the Business and Property Courts in Birmingham when using the Skype platform has gained wide currency on the Midland Circuit as the pandemic has progressed, and in the absence of case specific directions one might take inspiration from it.
- The Judiciary of England and Wales guidance, paragraph 25 indicates that electronic bundles should contain only documents and authorities that are “essential” to the remote hearing. The meaning of “essential” was considered by HHJ Cox QC sitting as a High Court Judge in Tailby, Re TPS Investments (UK) Ltd  EWHC 1135 (Ch).
Filing and service
- In terms of filing and service of bundles, in the first instance reference should be made to any stipulations in the relevant rule, practice direction or any order of the court made in the case you are handling. Frequently court issued directions will prescribe 14 days before the hearing. However, where none of these make provision, then the longstop is paragraph 6.11 of Civil Procedure Rules (“CPR”) Practice Direction 23A (Applications) by which the filing of documents is directed to be “…no later than 4:00pm at least 2 days before the hearing”. Being pragmatic about the constraints thrust upon the court service by the pandemic it might be prudent practice to allow a day or two longer.
- In the relatively rare case in which a skeleton argument is required (perhaps in a credit hire claim) service of the bundle will have to allow time for the parties skeleton arguments to be cross referenced to it.
- Do check that the court and witnesses have the technological capability (wifi capacity, data bundle etc) to enable them to download and view any CCTV footage.
- Talk to participants in advance. There are various was of making CCTV available, but an online data room is often one of the best.
- Do check the directions given in the case that you are handling as these will specify the type of remote hearing, usually either telephone such as BT Meet Me, or video such as Skype for Business or Cloud Video Platform (“CVP”);
- Don’t simply assume that your witnesses can use any specified technology;
- Do check, for example, that your witnesses have Skype for Business loaded on their device or that they have Google Chrome or Firefox as a browser with which to access CVP;
- Do ensure that your witnesses have carried out a trial run with whichever software is stipulated;
- Do contact the court early if there is any potential difficulty with technology or user capability. Technological literacy, for example, declines steeply among the over 70s. Most sets of directions that the writer has seen require problems to be notified at least 7 days prior to the hearing;
- Do make sure that your witnesses will have a quiet place in which to sit and access the hearing, where they cannot be overheard, with good signal and no interference from other electronic devices;
- Do send the witness’ name, email address and telephone number to the court at least 7 days before the hearing; and
- Don’t permit your witnesses to join a hearing that is being conducted on a video platform by any other method that may be available, for example by telephone, without very careful thought. Most judges require to see a witness whilst giving evidence because they rely significantly on demeanour when assessing credibility.
Failure to attend the hearing
- Many forms of directions order typically provide for steps such as these and it seems that failure to comply might well be regarded as behaving unreasonably for the purposes of wasted costs under CPR 27.14(2)(g). The writer has also seen sets of directions which empower the court to strike out a claim or defence, or to proceed to determine the claim on such evidence as is available, despite the absence of a party, where directions such as the above have not been complied with.
- There may, of course, be good reasons why technology cannot be accessed or used. It was noted above, for example, that technological literacy declines steeply among the over 70s and there may be other factors that mean one of the parties cannot engage with it. However, without a very specific good reason, the presumption is that a remote video hearing is an appropriate method of resolving a claim, see John Kimble QC sitting as a Deputy High Court Judge in One Blackfriars Limited (in liquidation) [2020 EWHC 845 (Ch) refusing, on 1st April 2020, to adjourn a five week trial.
- Do check whether the documentary evidence in the bundle will need to be interpreted to the witness during the hearing – if so the interpreter will need a copy of the bundle.
- In a case where your witness’ evidence has to be interpreted the Do’s and Don’ts for remote technology and bundle access will apply equally to the interpreter.
- Do arrange a pre-trial conference between the client and your counsel or other advocate who will be conducting the hearing.
- A pre-trial conference is almost always essential and can be held by any remote method. Often this can take place in the hour or so before the hearing, but if an interpreter is necessary, remember that taking instructions takes four times as long as a direct conversation, so the day before the hearing may be the preferable choice.
PARTICULAR TYPES OF PROCEEDINGS
- Infant Stage 3 and infant settlement approvals are not traditionally carried out by way of Telephone hearings, being outside the scope of CPR Practice Direction 23A (Applications) paragraph 6.2. However, paragraph 6.5 allows a court, of its own initiative, to direct that an application of any type may be conducted as a Telephone hearing. Video conferencing is available for “any part of proceedings” see CPR Practice Direction 32, Annex 3 paragraph 2, subject to specific directions being given by the court, see, CPR Practice Direction 23A paragraph 7. Potentially this makes video conferencing a very much more flexible option.
- At time of writing there is no generally applicable guidance from the Ministry of Justice on how infant Stage 3 and infant settlement approvals should be prepared for remote hearings. This is, of course, quite understandable given the unprecedented nature of our current times.
- With this in mind, until definitive advice is received, what follows is an attempt to offer some suggestions intended to help those faced with the task of preparing such cases on behalf of child claimants.
- The process of resolving disputed evidence as to fact, which might be regarded as providing the most fertile ground for injustice when carried out through the lens of a remote hearing, will not arise in the vast majority of infant stage 3 and settlement approvals, a characteristic which should increase their suitability for remote handling.
- First and foremost check all the directions that the court dealing with the particular case that you are handling may have given. In the straight forward instance of a settlement approval to be followed by an investment hearing, if the current court order(s) do not cater for the consequences of social distancing, for example they simply direct that a “disposal” hearing will take place by Telephone, then it may be possible to engage with the court and obtain further case specific directions in advance of a forthcoming hearing. CPR Practice Direction 23A (Applications) paragraph 9.2, covering as it does “…any hearing that [the court] fixes on its own initiative…” may assist in this regard and, if cases can be identified and actioned sufficiently early, then such directions offer the opportunity to smooth out many of the likely difficulties.
- In addition to any specific court directions in the case you are handling reference should, of course, always be made to the evidence required to be filed in the various circumstances set out in CPR Part 8 Practice Direction 8B (Low value RTA pre-action protocols Stage 3 procedure) and CPR Part 21 Practice Direction 21 (Children and Protected Parties), ensuring that this is included appropriately in the bundle. In this respect the most important paragraphs of the practice directions are:
- PD 8B paragraph 6 filing and serving written evidence;
- PD 21 Paragraph 5 approval of settlement made before the issue of proceedings;
- PD 21 Paragraph 6, approval of a settlement made after the issue of proceedings; and
- PD 21Paragraph 9 Investment on behalf of a child.
In terms of practical preparation much of what is suggested in the bundles section of the Do’s and Don’t’s above will provide useful advice.
The litigation friend
- The major practical difficulty to be addressed in the case of a remote hearing will be the physical absence of both the litigation friend and the child from the hearing. This will give rise to two concerns which are normally dealt with by the litigation friend in a traditional court. First, for the purpose of approving the settlement, it is necessary to have confirmation that the minor has recovered from his or her injuries in line with the expectations outlined in the medical report. Secondly, for the resolution of the investment hearing that will follow the approval, the age of the infant must be proved and, if investment in the Court Funds Office is considered undesirable due to the low rate of interest that it pays, then the litigation friend would customarily provide evidence of the existence of a Child Trust Fund or contend for such other investment direction as is thought fitting.
- In order to alleviate these problems, in addition to filing a completed and signed Form 320, together with a draft order in Practice Form N292, you should also consider the following:
- Endeavour to make sure that the litigation friend has received a copy of Form CFO 403 (information sheet for litigation friend) which should accompany the Form 320;
- If the litigation friend and the minor are part of the same household, they might, potentially, be joined into a Telephone hearing. If that were to be possible then in that way the litigation friend and, provided that he or she is of suitable age, also the infant, could each answer questions in the usual way. However, a potential pitfall here is that as mentioned above, CPR Practice Direction 23A paragraphs 6.1 – 6.10 were not drafted with Stage 3 and infant approvals directly in mind and paragraph 6.10(4) does not envisage any participants in the Telephone hearing other than legal representatives and the judge. It may be possible to overcome this with only judicial consent – the Defendant has no role in the typical infant approval, the hearing is inherently non-contentious and including the litigation friend would more closely approximate to orthodox proceedings;
- If video conferencing is used there would seem to be nothing in the CPR or practice directions to prevent the litigation friend and child attending on-line if so directed and this is clearly preferable;
- Alternatively a concise witness statement from the litigation friend might be filed confirming that the child has recovered from his or her injuries in accordance with the prognosis anticipated in the medical report. This witness statement can additionally confirm that the litigation friend is happy with the settlement as required by CPR Part 8 Practice Direction 8B paragraph 6.5;
- In any case a certified copy of the birth certificate (or, exceptionally, other proof of age) should always be filed, assuming that the same can be obtained without the Government’s social distancing guidelines needing to be breached. This is necessary because it will not be possible to hand up the original birth certificate to the District Judge, as one would usually do. In the case of remote hearing by video much depends on the platform, some, for example CVP, offer a sharing facility others do not; or
- If a certified copy cannot be obtained, then it might be sufficient to exhibit an ordinary copy to a short witness statement as long as it is explained in the witness statement why it is that a certified copy cannot be obtained without breaching the social distancing requirements.
The writer is aware that conditional on the filing of appropriate paperwork some district judges are content to deal with the investment directions as box work.
- A contested stage 3 hearing is relatively rare in the case of an infant but if any such is to be heard remotely then filing and serving a paginated bundle is absolutely essential and a case summary setting out the issues is also a sensible idea. Reference can again be made to the advice in the bundles section of the Do’s and Don’ts above.
- Where a default judgment has been entered for a sum of money only in a claim pending in either the Birmingham or Manchester county courts, there is a video hearing pilot for set aside applications running until 31st March 2021, see CPR Practice Direction 51V.
- It is in the nature of the difficulties that the pandemic causes that there will be times when no rule or practice direction quite covers the circumstances. What happens when there is an apparent lacuna?
- Rules are, of course, binding. The CPR and its amendments are all statutory instruments. However, when uncertainty arises it is important to remember the flexibility inherent in the overriding objective in CPR Part 1, particularly the duty to deal with cases “justly” and “fairly”.
- Perhaps not surprisingly judicial authority provoked by the pandemic comprises in the main of decisions in sensitive and urgent child care matters, and such cases need to read with that caveat. Nevertheless, in the context of remote hearings, in A (children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583 the Court of Appeal, led by the President of the Family Division Sir Andrew McFarlane, set out a useful list of factors at paragraph 9 of the judgment. On the specific facts before it, the court then went on to hold, at paragraphs 49 to 56, that the case was unsuitable for remote hearing because one of the parties would struggle to engage with technology and therefore could not participate sufficiently to make the hearing “fair”.
- As regards practice directions, in R (Mount Cook Land Limited) v. Westminster City Council  EWCA Civ 1346 Auld LJ, giving the judgment of the court, said at paragraph 68 that whilst it is important that practice directions can be relied upon as indicating the normal practice of the courts they differ from the rules in two respects. First they are not binding in the same way as a CPR rule and secondly they are, in fact, subordinate to those rules. It might therefore be postulated that there is some room for flexibility around the terms of a practice direction, for example to further the overriding objective, as long as care is taken to see that no CPR rule is broken in the process.
Low value PI claims
- A note of caution. There is a sense in which the usual relationship of precedence between the CPR protocols rules and practice directions may not be the same in the case of low value personal injury claims as it is in other types of claim. This is because steps that would normally only take place once proceedings have been issued, for example obtaining and exchanging medical reports, are found in the protocols, especially at stage 2. There is also an offers procedure, and the stages under the protocols give rise to a liability in costs. The protocols, rules and practice directions therefore form part of integrated scheme and must be read accordingly. This is explained in more detail in the White Book 2019 at page 2649 paragraph C13A-005.
- Some concern has been expressed as to whether a furloughed employee can liaise with solicitors to prepare a witness statement and then give evidence on behalf of his/her employer without breaching the terms of the Coronovirus Job Retention Scheme. As this scheme has been extended by the Chancellor at Budget 2021 until 30th September 2021 the following thoughts are proffered.
- The relevant provisions are in Schedule 1 of the Treasury Direction made under section 76 of the Coronovirus Act 2020 on 15th April 2021, in force from 1st May. In so far as material, these provide in paragraph 7 that a furloughed employee:
- will do no work in relation to their employment, or
- will not work the full amount of their usual hours in relation to that employment.
HMRC have also published guidance for employers which states:
“During hours which you record your employee as being on furlough, you cannot ask them to do any work for you that:
- makes money for your organisation or any organisation linked or associated with your organisation
- provides services for your organisation or any organisation linked or associated with your organisation”
making it clear that “work” includes the provision of services.
Fottles v. Bourne
- There are to be found on the web various reports of a county court decision, Fottles v. Bourne in which His Honour Judge Godsmark Q.C. apparently held that attending court to give evidence is not “work”. There are a number of limitations with this ruling. First it is a decision on the point of attending court, it does not expressly embrace preparatory steps. Secondly, as a county court ruling, it is not binding. Thirdly, the learned judge’s remarks seem to have been made obiter dicta, rather than as an essential part of his decision to adjourn the case.
- With these points in mind, and taking into account that the language of the Treasury Direction and the accompanying guidance is somewhat open textured, there will be a great variety of divergent circumstances between individual cases. In the RTA “bent metal” context it is thought that two alternatives deserve consideration as affording possible complimentary arguments – the doctrine of subrogation and, separately, if a witness summons is issued the performance by the employee of a statutory duty.
- Is the employee in fact assisting the relevant insurer, rather than doing work for the employer? In this respect paragraph 32.1 of the Schedule to the Treasury Direction provides:
“For the purposes of CJRS, an employee must be treated as working for an employer if the employee works for a person connected with the employer (see paragraph 40.4) or otherwise works indirectly for the employer.”
Paragraph 40.4 applies the “connected person” provisions of the Corporation Tax Act 2010 but in most cases these are unlikely to be a problem. However there remains the phrase “…otherwise works indirectly for the employer”.
- In an action in which the employer is a party then at common law if:
- the insurer has already fully indemnified all of the employer’s losses such that there is no uninsured loss element in the claim or counterclaim, and
- the insurer has also provided the employer with a costs indemnity,
then the principle of subrogation may mean that the insurer is in fact the one conducting the litigation, not the employer. There may also be provisions in the contract of insurance that assist with this sort of argument.
- More generally, because the Civil Procedure Rules are made by statutory instrument pursuant to the Civil Procedure Act 1997, where they can be used to impose obligations such as the requirement to answer a witness summons (CPR Part 34) it is arguable that the obligation so created is a statutory duty. If that be right, then a hesitant witness might be made the subject of a witness summons such that they are then complying with a statutory duty which is not derived from their employment. However, the scope of a witness summons is confined to securing the attendance of the witness at court and the production by him or her of documents. It is therefore unclear that this approach would protect the furloughed employee in respect of any preparatory matters, particularly the steps involved in providing a proof for a witness statement.
- Obviously, in addressing the consequences of the “social distancing” necessitated by Covid-19 everyone involved is dealing with a unique situation. This is the first edition of this web page. There will be further editions in the New Year. This is because it is expected that even as the constraints imposed by Covid-19 are eased by the use of vaccines, insurance industry “bent metal” cases will continue to be resolved by remote hearings many months into 2021. There is a very extensive backlog of cases in the family courts involving children to which it is only right to expect priority to be given when face to face hearings are allocated.
- Feedback from legal professionals and the judiciary in terms of both comment and criticism will enable the discussion in subsequent editions of this page to become more comprehensive, informed and mature. Feedback will be kept confidential and will not be attributed on the published page.
- Feedback must come from your professional practice or official government e-mail and should be sent to email@example.com It should go without saying that duties of confidentiality, both as a matter of professional conduct and as imposed by the GDPR require that any anecdotes from real case experience which you might choose to present in feedback must be fully anonymized.
New Street Chambers
27th April 2021