How does litigation work in a lockdown?

The current pandemic has disrupted all our lives in every sense.  That is the same with legal issues as with anything else.

In fact civil litigation has been hit less hard than criminal practice where lawyers cannot attend court or interview clients in police stations.   It has not however, been untouched by the current situation.

For claimants there are practical difficulties in progressing claims.  There are enormous difficulties in dealing with evidence and trial.  There was a significant  backlog at the court before Covid-19 arrived and that backlog is likely to be increased at the end of the pandemic.  For the initial stages of the case where a judge  sets the  timetable and  costs budget, those delays were six, seven or more months.  It may well be longer once the lockdown has been lifted.

For many years those of us dealing with civil litigation have been trying to work with what was an archaic court IT system.  Some of the judges have been at the forefront of trying to update and progress developments but on restricted budgets it has proved to be a mammoth task.  The effect of Covid-19 has been to force through changes which we could not have anticipated only a few months previously.

Most hearings are now done by some form of video technology, Skype, Teams etc.  Many hearings were already done by telephone so that process can continue.  There were however, in all cases, circumstances where face to face contact with the judge was helpful.  Not all matters can be dealt with remotely.

Clearly, when dealing with expert witnesses who are used to giving evidence or  appearing in front of a video screen this is less of a problem as long as the technology can keep it running.  The evaluation of other witnesses however,  (examples in clinical negligence are the medical and nursing staff involved in the care of the patient or a claimant or their family trying to detail what happened) is difficult via video.  It is possible, but it depends on the circumstances of the individual witness. The role of a judge is to evaluate the evidence. That is not only the documentary evidence but also the testimony of the witnesses. This isn’t just a matter of what is said but how a witness presents, how they react.  That is hard to do  without being in the same room as the witness .

In addition the trials of cases with which I would deal are often five, six or more days.  It is quite difficult to run a trial for more than a couple of days by video.  It is tiring.  It does mean perhaps a lot more work but it also means an extra additional stress for the lay witnesses in particular.  There are trials going ahead that are three or four days at length, but very few that are heavily witness-based and that is an issue.

I have recently applied for a six day trial to be held remotely because I have a client who is a vulnerable individual health wise and  should be socially isolating.  Whether the judge will feel that he or she can assess properly the evidence given by my client or indeed anyone else at a trial in those circumstances I don’t know.  How it will work if the judge decides it should be a remote trial is also not clear and that can cause additional stress to all concerned.

Claimants in particular should be aware that there is a good possibility that a judge may determine that a remote trial is not doing justice to the case.  That they cannot evaluate properly evidence given by a claimant or indeed any other lay witness when they are doing it remotely. When there is already such a long period in taking a case from start to trial, this could mean a further significant delay.

The second issue for those dealing with clinical negligence and personal injury claims of course is the high dependence on medical experts.  There are two aspects to this.  Firstly a lot of the medical experts have been redeployed into different areas and different work and environments in the NHS.  Clearly their priorities are with the current pandemic and the care of patients.  This has to take priority and everybody understands.

Secondly face to face examinations are not possible currently and this of course presents particular difficulties.  There is no doubt that some examinations can be undertaken by Skype or WhatsApp type applications and evaluations can take place. Psychiatrists have been dealing with matters by Skype and indeed telephone for many years and are quite adept at doing so.  It is more difficult to do if you need to do a physical examination of (for example) a limb or the eye.

There is often a long wait for a medical expert appointment so it is also important that everyone recognises that the normal system of booking appointments and the clients attending is not possible at present.

In addition there are many claimants who are themselves vulnerable. Not all claimants are in their 30s having sustained a serious accident but otherwise in good health.  There are many claimants who suffer other underlying medical conditions which place them at greater risk.  There are many claimants who are elderly and vulnerable by reason of age.  Even when the situation changes, it is quite possible that these claimants will continue to be affected by what is happening and the need to protect their own health.

My opponents and I are all working remotely from home and for a large part that is working effectively.  We are all trying to accommodate the difficulties that each side has.  There has been agreement between the insurers and claimant personal injury lawyers in terms of extensions, and working together.  It has always been the case that there is a high degree of cooperation in clinical negligence between lawyers working for claimants and those dealing with the NHS.  That cooperation continues and has been extended because of the circumstances.

For claimants taking any legal claim it is worrying and distressing.   In the current pandemic, there  are and will be additional problems which arise.

Like all lawyers no doubt on both sides I am extremely grateful for the patience of the people whom I represent and for the cooperation of my opponents, the enormous efforts of experts to try and deal with matters and the courts to understand the problems that we face.  These are indeed unusual times.

Cases are still progressing in the pandemic. Law still works, just in a different way.