REASONS TO BE PROUD OF OUR PROFESSION 1: THE APIL – FOIL BEST PRACTICE FOR MUTUAL CO-OPERATION

I have been looking for examples of good practice by the legal profession during the coronavirus crisis.  A good place to start is the APIL/FOIL agreement on best practice.   The agreement can be found on a link on the page here. (It was written before the Rule Committee changed the rules to allow longer extensions, and recommends that the parties take a consensual approach to extensions).  It follows on from, and draws on the earlier agreement between Thompsons and the ABI (which was done in impressively lightening quick time). So we have two examples of exemplary behaviour we can be proud of.

 

COVID19 – APIL and FOIL Best Practice For Mutual Co-Operation

APIL and FOIL have set up a working party to discuss various aspects of our members’
work, which have been affected during the coronavirus outbreak. We have agreed a set
of best practices that we recommend their members consider and adopt where possible.

• Telephone calls/Email

Good communication is very important, particularly now that many offices have
closed and are unable to access their post on a daily basis. Practitioners should
engage with their counterparts by telephone and/or email with a view to resolving
disputes effectively and efficiently. Many members’ fee earners are able to make and
receive telephone calls even while home working. Email signatures should be updated
to indicate the correct contact numbers if they have changed due to remote working.
Similarly, individual email addresses should be provided.

• Service by email, including new proceedings

It is our view that it is in the best interests of your clients and the effective conduct of
claims to agree that firms temporarily agree to accept service by email.
It is entirely reasonable to seek express confirmation from your counterpart that
this covers service of the claim form where appropriate (remembering that solicitors
must have been given as the address for service for this to be effective).
You should consider using a dedicated email address for the receipt of service for
documents and proceedings. Make it clear that service to this email address is
subject to strict compliance with defined terms which limit your agreement to accept
service by email for the purposes of paragraph 4.2 PD 6A CPR.
Where a firm has declined to accept service by email the best course is likely to be to
serve in any event, having made application for an order under Part 6.15 (1).

• Service of ongoing proceedings

Where proceedings are already live, you may have the details of your counterpart
and their direct email address.

• Medical examinations

It is inevitable in the current circumstances face -to-face examinations will be difficult to
arrange. It will often be in the client’s best interests to agree to use some form of video
conferencing for experts’ ‘examinations’ of the injured person.
The BMA has issued guidance to medics indicating that the NHS is turning to remote
consultations in order to minimise the risk of infection for staff and patients. Its guidance
for medics is here: https://beta.bma.org.uk/advice-and-support/covid-19/practicalguidance/covid-19-remote-consultations-and-homeworking
Medco has agreed the current ban on the use of remote examinations will be
lifted. There are a number of conditions, and other factors, which users will need to
consider before making any arrangements with claimants for a remote
examination. Further details are set out in a separate notice here:
https://www.medco.org.uk/media/1186/remote-examination-guidelines.pdf
Inevitably some appointments with experts will have to be postponed or rescheduled.
Practitioners should try to adopt a consensual approach to the impact this will have
on case timetables.

• Exchange of evidence

Parties should try to agree to the exchange of witness evidence and expert evidence
by email, via a password protected pdf document.

• Extensions of time

It is likely that both parties will face challenges complying with existing court
directions and timetables. There is case law to support extensions of up to 56 days.
See O`Driscoll v FIVE Bianchi S.p.A where the court has recently held that the normal 28
day rule under CPR 3.8(4) will be relaxed in appropriate circumstances by granting a
56 day extension by consent. We recommend that practitioners invite parties to take
a consensual approach to considering requests for the extensions and respond
similarly to requests made by their counterparts.

• Remote hearings

HMCTS has issued guidance on the wider use of remote hearings, by telephone
or Skype. It is recommended that parties adopt this guidance.

• Adjournments

It is also inevitable that some adjournments will be required due to non- availability
of clients, witnesses or experts. We recommend that you take a consensual approach
should it be necessary to seek an adjournment of either an interlocutory hearing or trial.

• Interim payments

Parties ought to adopt a reasonable approach to requests for interim payments. In the
current climate, interim payments are likely to be of vital importance, and any
unnecessary applications to the court ought to be avoided.

• BACS payments

To enable a more efficient and effective transfer of funds for damages and costs firms
should use BACS payments wherever possible. Note that in light of the increased
information security and financial crime risks associated with BACS payments, please
ensure that you only make payments by BACS to the account details provided by your
COLP, providing appropriate evidence to validate the bank account details provided.

• Costs budgeting

It is recommended that where possible parties exchange their costs budgets. Every
court will deal with CCMCs differently and if they do proceed they will be held remotely
usually by telephone hearing. Depending upon client instructions, the parties should
consider whether the budgeting aspect of the CCMC hearing should be
adjourned. However, the parties should seek to agree directions generally where
possible without the need for a hearing. If the parties are unable to agree directions, the
hearing should go ahead as scheduled.

• Limitation

where the effects of the Covid-19 outbreak mean that limitation becomes an urgent
issue, then best practice is that, subject to any general deferment of deadlines: to
1. Enter a standstill agreement to extend the limitation period.

2. Issue and serve the claim form – either ask the defendant to agree an
extension of time for medical evidence or, if they will not so do, seek an
order from the court.

• ABI & Thompsons Solicitors Limitation Protocol

The ABI and Thompsons Solicitors have already agreed an Extension to the Personal
Injury Protocol regarding limitation, which APIL has endorsed. A list of insurers and law
firms which have signed-up to the Protocol is available on the ABI website here:
https://www.abi.org.uk/products-and-issues/choosing-the-right-insurance/motorinsurance/coronavirus-protocol/
For ease of reference, the wording of the ABI & Thompsons protocol is set out here:
Text of the Protocol agreed between the ABI and Thompsons solicitors
A protocol is agreed and immediately put into effect. This will involve, for a minimum of 4 weeks
(until the 20th of April) with a joint review in the week commencing the 13th of April, the
following:
1. An agreement that all limitation dates in all personal injury cases are frozen and claimants
undertake to respond constructively to defendant requests for extension of time to serve a
Defence;
2. An escalation process whereby any issue arising by a party’s failure to act in accordance
with the agreement in 1. above and which cannot immediately be resolved between the
parties is referred to an email and/or telephone ‘hotline’ specifically established for this
situation; and
3. A commitment that the email and telephone hotline will be monitored regularly and referred
to senior people within the respective organisations who will be able to make a swift
decision as to whether the stance being taken should be adjusted in light of prevailing
circumstances.

Scotland specific provisions

• ABI, APIL, FOIL, MASS have agreed a Limitation Protocol for Scotland which will be
circulated separately.

• Service

Service of Summonses or Initial Writs should be possible by email. Defenders’ firms
should confirm receipt and that no issue will be taken in relation to any aspect of
service.

• Extensions of time
Guidance has been provided by the Court of Session, Sheriff Appeal Court and AllScotland Personal Injury Court in litigated cases. Parties should take a consensual
approach in relation to time limits and not seek to take unfair advantage of a party not
complying with a procedural requirement. ‘Particular regard in this respect should be
had to service of an Initial Writ or Summons, and the lodging of a Notice of Intention to Defend or Defences’

APIL and FOIL, 31 March 2020