Access to justice during the COVID pandemic
Exploring the difficulties that have had a knock-on effect on the claims handling procedure
Since March 2020, the COVID pandemic has caused disruption to the claims handling process. This, in turn, has impacted not only the length of time it has taken to settle claims but also key performance indicators. In this article, we explore some of the challenges that litigators have faced and continue to face.
There was significant growth in the use of electronic signatures during the pandemic. The statement of truth in witness statements caused some confusion initially as to whether an electronic signature would suffice.
The commentary to CPR 22.1 states “Rule 5.3 states that, where it is required that a document should be signed the signature may be 'printed by computer or other mechanical means”. At first blush it appeared that this excluded witness statements as they must include a statement of truth and a statement of truth is not 'a document' but a statement in a document. However, in Zurich Insurance plc v Romaine  EWCA Civ 851, the Court of Appeal granted permission to bring committal proceedings against a claimant for knowingly making false statements of truth. Two of those statements of truth were signed with an electronic signature yet the Court of Appeal did not question the validity of using electronic signatures on statements of truth.
Further, HHJ Freedman has provided guidance for the Northumbria & Durham Courts which stated “In the interests of expediency, and given the terms of CPR 5.3, an electronic signature on all documents including Witness Statements & Disclosure Statements will suffice.”
Case preparation was also hindered by the lack of resources, both in offices and the courts due to the number of individuals contracting COVID and becoming ill. Furlough heightened the under-staffing issues. This, in turn, caused difficulties in obtaining instructions from clients which increased the pressure to comply with court directions. In an attempt to avoid missing court deadlines, litigators were, sensibly, seeking the court’s permission to build in more time for case management at the directions stage. Jalla v Shell International Trading and Shipping Co Ltd  EWHC 738 (TCC) is an example of this where the court extended the time for compliance with directions when making an order for future directions due to the pandemic.
The court system ground to almost a complete standstill when COVID initially spread across the UK. The court system had to adapt to a new way of working remotely, including remote hearings. This has caused significant delays for both existing and new cases. The backlog of cases still waiting for judicial determination causes concerns about litigants waiting longer for justice and the risk of evidence being lost or forgotten.
The Office for National Statistics report, published on 2 December 2021, reports that county court claims were down 27% on the same quarter of 2019. There were 404,000 county court claims lodged from July to September 2021 with 367,000 of them being money and damages claims (down 24% from July to September 2019). However, even though there has been a reduction in claim numbers from a judicial perspective, because of the already over-burdened judicial system, the average time taken for small claims to be judicially determined was 50.7 weeks which is 12.6 weeks longer compared to the same quarter in 2019. For multi and fast track claims the time for a case to reach trial was 70.6 weeks, being 11.3 weeks longer than July to September in 2019.
Whilst HMCTS introduced Nightingale courts, they were primarily designed to be used for criminal cases in an attempt to ease the knock-on effect of individuals being held in custody and the overburdening of the prison service.
The judicial system was forced to move to remote hearings. There have been mixed responses to remote hearings from both litigants and the judiciary. Some of the difficulties faced included:
- Technical glitches, causing difficulties in evidence being heard and necessitating it to be repeated — thereby elongating the time required for hearings and trials.
- The suitability of a remote hearing for individuals and whether there are any distractions whilst evidence is being given.
- Those with sensory impairments requiring longer time due to slower communication and the need for more breaks.
- The difficulty for the judiciary to ensure the evidence given by a witness is being done so privately and there is no manipulation by a present third party.
There have been some advantages by using remote hearings including:
- Costs savings for clients as parties and solicitors are not required to travel to the relevant court.
- Witnesses have appeared more relaxed and less stressed when giving evidence remotely as they have not felt intimidated by the courtroom.
The latest report, following research by HMCTS and IFF Research, published on 10 December 2021 revealed some interesting facts. The joint research was conducted between May and October 2020 taking views from the public, judges, legal professionals and HMCTS staff. Concerns were raised about the prehearing information, with links for hearings being sent less than one hour before the hearing. Further, 54% of legal representatives and 58% of judges reported that remote hearings had had a detrimental impact on their health and wellbeing.
Will remote hearings continue beyond the pandemic? The first report of the House of Lords Constitution Committee recommended that the Government continue to invest and develop the technology for remote hearings to continue. The report referred to above from HMCTS confirms that the Cloud Video Platform (“CVP”) that has been used to facilitate remote hearings assisted with glitches during remote hearings. However, as part of the development of HMCTS services, it is planned to move remote hearings from CVP to Video Hearings service. Developments are underway and it does appear that remote hearings will form part of the future of the judicial process.
What must the court consider when ordering a remote hearing?
Whether the hearing will proceed remotely is a matter for the judge to determine, having regard to whether evidence is required or the hearing will proceed on submissions only. The court will also consider the consent, or not, of the parties. In Bilta (UK) Ltd and others v SVS Securities Plc and others  EWHC 36 (Ch), Marcus Smith J refused to adjourn an imminent five-week trial of dishonest assistance proceedings in the Financial List, finding that COVID-19 considerations did not justify an adjournment. He held that the trial should be a hybrid hearing and set out a detailed scheme by which this could be achieved.
COVID has also caused difficulties with the Compensation Recovery Unit (“CRU”). The CRU still has a significant backlog of cases to deal with and the delays are lengthy in issuing up to date certificates.
There remain issues around appeals and Requests to Review at a time when the need to challenge certificates is increasing (given the impact of introducing Universal Credit meaning repayable benefits appearing on the certificate can often take parties by surprise and be higher than ever anticipated due to the way Universal Credit is calculated now).
Where proposed settlements are reached gross of CRU, net damages payments cannot be determined until the CRU’s determination is available and therefore the delays in arriving at that determination are stalling the finalisation of settlement deals.
Overall, whilst the judicial service has continued during the pandemic, albeit in a very different format, there can be no doubt that the difficulties highlighted above have had a knock-on effect on the claims handling procedure. There also remain questions around whether the future of the judicial system will continue to evolve, for example, remote and hybrid hearings. One thing we can confidently say is that the judicial system and the claims handling process has changed forever.