CIVIL LITIGATION IN A TIME OF TOTAL UNCERTAINTY: 10 KEY POINTS ON DIFFICULTIES ARISING OUT OF THE CORONAVIRUS OUTBREAK
I cannot recall a time when matters were so rife with uncertainty. By request I have been asked to consider practical steps litigators can take. Equally significantly we have to consider what steps the courts, and the Rules Committee, should be taking. There are no easy answers but it is prudent to recognise the major procedural problems that coronavirus could case, and to have systems in place to deal with potential difficulties. Most significantly, however, the duty of the parties to co-operate is one that now must come to the fore.
At the moment:
- Not one single advocate knows whether they will be fit (or whether it will be safe for them) to go to court tomorrow morning.
- Witnesses and experts may not be able to attend court.
- Any witness, expert or advocate over the age of 70 may be wholly justified in deciding not to attend.
- Judges and court staff may be exposed and not be able to attend.
- A department, a firm or a chambers, may be justified in closing down and sending everyone home if they find out that someone they work with has coronavirus.
- It may not be possible to meet, or interview, crucial witnesses.
(2) PROBLEMS WITH PROCEDURE
There are numerous potential problems with procedure:
- Service of the claim form.
- Service of a defence.
- Compliance with court orders.
If you have a case with a limitation date looming within the next 2 – 3 months (arguably 3 – 6 months), then there are a number of options.
- Agree a limitation amnesty.
- Issue now.
Remember in some cases the courts have found that there is a duty on a claimant to seek to agree a limitation amnesty. See the case of Andrews v South Tees Hospitals NHS Foundation Trust, discussed here.
A duty on claimants to seek a limitation amnesty in certain cases implies a duty on defendants not to be unreasonable in agreeing to one.
Limitation amnesties have to be drafted with considerable care, see the post here.
If a limitation amnesty is not possible then there is much to be said for issuing now.
The case may not be ready for service and the important point here is to make a prospective application for an extension of time for service.
- Make sure you agree a limitation amnesty with all the proposed defendants (and you are sure who the defendants are going to be).
- Ensure that the terms are totally clear. Rather than “a further three months” there should be a clear date given.
- Often the amnesty is agreed in general terms with the agreement being revoked by the defendant giving a period of notice. Make sure the period of notice is reasonable and that it has to be given in writing.
(4) SERVICE OF THE CLAIM FORM
It would be prudent to serve any unserved claim forms now.
Issuing then applying for an extension of time to serve the claim form is always a dangerous option.
There are numerous case reports on this blog where the courts have set aside extensions of time to serve the claim form.
For example, in Foran -v- Secret Surgery Ltd  EWHC 1029 (QB) the order extending time for service of the claim form was set aside. The claimant’s solicitor had explained their difficulties
“… the limited evidence before the Master no good reason was provided by the Claimant’s solicitors for their failure to serve the claim form within the prescribed period, and the Master was wrong to grant the extensions of time. Merely explaining why the application was being made…, does not amount to showing a good reason for the delay in serving the claim form, upon which the Master needed to focus and which he failed properly to consider.”
- The defendant can apply to set the order aside. This happens regularly.
- A claimant cannot rely on a “false sense of security” argument – blaming the court for granting the extension. This argument was effectively killed by the Court of Appeal in Hoddinott v Persimmon Homes (Wessex) Ltd  EWCA Civ 1203
- If the order is set aside the action is over.
There are some cases where claimants have been successful in opposing an application to set aside an extension. However these are rare. It is a brave (or foolish) litigator who conducts a case on the assumption that extensions will be granted and, if challenged, upheld. The main difficulty being that there is often little answer to an argument that there was nothing preventing a claimant from serving the claim form. The claim form could have been served and an application made to extend time for service of the particulars of claim and other relevant documentation.
The solution in the current climate: be open – and be co-operative
The essential thing here is to be entirely open with the court and the defendant about why the application for an extension is being made. This is a very dangerous time for a defendant (or any party to litigation for that matter) to be difficult or truculent. There is every possibility that they will need help and assistance at some time in the future.
- The extension agreed must be clear and explicit. The claimant failed at first instance in the Thomas -v- Home Office  EWCA Civ 1355. because there was disagreement about what had been agreed orally. The claimant believed a further extension of “a further month” ran from the date of expiry of an earlier agreement, the defendant believed it ran from the date of the conversation.
- There may be some ambiguity about the time needed for service of the particulars of claim and medical report.
- There are several cases where a claimant has agreed an extension of time to serve the claim form and subsequently forgotten to serve it when serving the particulars of claim.
- Similarly there are several cases where a claimant has applied for an extension of time to serve the particulars of claim but forgotten to seek an extension of time for service of the claim form.
(5) SERVE THE CLAIM FORM AND THEN APPLY FOR AN EXTENSION OF TIME FOR SERVICE OF THE PARTICULARS OF CLAIM AND MEDICAL REPORT (IF RELEVANT)
In a difficult situation this would be my own preference. The important point here is to serve the claim form and make the application for an extension of time prospectively that is within (and preferably well within) the four month period for service.
- A prospective application to extend time meets with a very different set of principles to a retrospective application, see Robert v Momentum Services Ltd  1 WLR 1577 (CA) where Dyson LJ stated:
“I do not consider that observations made about prejudice in relation to proceedings issued after the expiry of the limitation period are of assistance in determining what prejudice is relevant for the purpose of deciding how to exercise the discretion conferred by rule 3.1(2)(a). It seems to me that the correct approach is to concentrate on prejudice that has been and/or will be caused to the defendant by the failure to serve the particulars of claim in time. Most applications under rule 3.2(1)(a) are for relatively short extensions of time for taking some step in the proceedings. The present case is a good example. It would be very surprising if, when dealing with such applications, district judges were required to embark on what could be the quite complex exercise of investigating what prejudice the defendant has suffered at earlier stages in the proceedings, or before proceedings have been issued at all. I accept that there may be circumstances in which the prejudice suffered as a result of the failure to act in time will be qualitatively affected by earlier prejudice. But as a general rule, I would hold that the focus of attention should be on the prejudice occasioned by the failure itself, and not on pre-existing prejudice. In my view, the judge was wrong to say that the fact that the defendant could point to no prejudice that would result from the grant of an extension of time itself was “beside the point.””
- An application can be made without notice, see Lachaux -v- Independent Print Ltd  EWHC 1847 (QB). It was made clear that the important point is the time that the application is made not when it is heard
“As Hallam Estates v Baker (above) shows, if an application for an extension of time is made in time, then, even if it is heard after the time limit expires, the Court will still approach the matter as an application under CPR r.3.1(2)(a). The applicant will not then have to satisfy the more stringent standards applied when relief is sought against sanctions.”
- If the application is made without notice the defendant can apply to set it aside (There is, however, nothing to prevent an application being made on notice and served on the defendant).
- It is essential that the Particulars and other documents are served within the extended period (or a further extension obtained prior to the first extension lapsing).
- Remember the particulars of claim and other documentation have to be served within the initial four month period, even if you serve the claim form at the end of that period.
(6) EXTENSIONS OF TIME AND CO-OPERATION IN LITIGATION
CPR 1.3 imposes a duty on the parties to further the overriding objective.
The parties are required to help the court to further the overriding objective.”
The overriding objective requires the court to deal with cases “justly” and “ensuring the parties are on an equal footing.”
In a case where a party, or their legal representatives, are hampered by coronavirus it is (or should be) clear that the parties are under a duty to co-operate with other and assist the court in finding ways that the court can deal with the situation “justly”.
The key element here has to be honesty and transparency. A party who needs an extension of time, or a variation of an order, because of issues arising out of coronavirus should explain, clearly, why that need has come about – vague assertions are unlikely to be helpful. Once that need is established then both parties should look for ways to minimise disruption to the case and the court, whilst at the same time being mindful of the very real difficulties that this is causing.
(7) THE COURTS AND THE RULES COMMITTEE
The Chief Justice of Georgia has responded promptly “during the period of this Order, the undersigned hereby suspends, tolls, extends and otherwise grants relief from any deadlines or other timing schedules or filing requirements imposed by otherwise applicable statutes, rules regulations, or court orders, whether in civil or criminal cases or administrative matters…” These include statutes of limitation.
In due course, indeed in early course, it may behove Parliament to give powers to allow the suspension of time periods (including limitation periods) in civil procedure.
The Rules Committee does not have power to extend limitation periods. However it should, as a matter or urgency:
- End the 28 days limit by which parties can agree to extend time. (The time limit should probably be open ended).
- Try to find some way in which parties, seeking an extension of time in these circumstances, are excused the paying of fees.
- Needless to say all applications to extend time (by consent) should be dealt with on paper or by telephone.
(8) IF IN DOUBT – DON’T GO TO COURT (AND DON’T SEE CLIENTS – ESPECIALLY VULNERABLE CLIENTS)
During this period of uncertainty an advocate not turning up at a hearing because of suspected coronavirus is a perfectly acceptable action (indeed the most – if not the only- socially and professionally acceptable action). I am not saying that an advocate who suspects a problem is not under an obligation to notify other parties and attempt to find an alternative as soon as possible, however an advocate (or expert, or client, or judge for that matter) who wakes upon the morning of a hearing and believes they may have a problem, should feel safe in knowing that the only prudent course of action is not to attend the hearing.
(9) NO OPPORTUNISM PLEASE
It would be profoundly disappointing if any party to litigation attempted to take advantage of difficulties caused by the coronavirus outbreak. Anyone tempted should remember the observations of the Master of the Rolls in Denton & Ors v TH White Ltd & Ors  EWCA Civ 906
The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case. If the offending party ultimately wins, the court may make a substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If the offending party ultimately loses, then its conduct may be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR rule 3.18 in relation to its costs budget.
We should also make clear that the culture of compliance that the new rules are intended to promote requires that judges ensure that the directions that they give are realistic and achievable. It is no use imposing a tight timetable that can be seen at the outset to be unattainable. The court must have regard to the realities of litigation in making orders in the first place. Judges should also have in mind, when making directions, where the Rules provide for automatic sanctions in the case of default. Likewise, the parties should be aware of these consequences when they are agreeing directions. “Unless” orders should be reserved for situations in which they are truly required: these are usually so as to enable the litigation to proceed efficiently and at proportionate cost.
(10) WHERE DO WE GO FROM HERE?
The blunt answer is that we don’t know. What matters is that all parties to litigation are fully aware of the difficulties that could present themselves with very little (or no) notice and that the parties are open with each other, and the court, as to the difficulties they are experiencing.