How are Trials Now Being Held?

The new COVID-19 Clinical Negligence Protocol 2020 shows how one specific area of law (and perhaps one of the most impacted areas of law) has responded to the challenges the industry faces. Some of the key features of the Protocol can equally apply to trials taking place in other areas of law, and  this is proven later on in this article when we look at how the HM Courts and Tribunal Service have approached the challenge in Criminal trials.

Clinical Negligence Litigation has been severely hampered by unavailability of medical experts to assist the court with issues of liability and/or quantum. In some cases NHS and private hospital complaints procedures have been suspended, and any internal investigations delayed.
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In response NHS Resolution, patient safety charity Action against Medical Accidents and the Society of Clinical Injury Lawyers agreed a Covid-19 Clinical Negligence Protocol 2020.

Features of the Protocol include:

• Moratorium on limitations until 3 months after the Protocol ends.
• Email is the default position to serve/receive documents.
• Clients should be assessed virtually/remotely when experts draft medical reports.
• Parties should act reasonably when dealing with requests for interim payments of damages and payment of costs on account.
• Video-conferencing is the preferred approach when settlement meetings are held or mediation is taking place.
• Regarding hearings and adjournments, it is recognised that NHS staff should not be made to do anything which affects the ability of the NHS to tackle the pandemic. With that said it is also recognised that the pandemic cannot be used as an excuse if delay can be avoided.
• Protocol will continue until either party terminates it and the features of the Protocol will be reviewed every 8 weeks

Could we soon be seeing other protocols such as this emerging in relation to commercial litigation cases across the board?

HM Courts and Tribunal Service aim to publish every Friday by 5pm a weekly summary of any updates in the operational position of the courts. The below link takes you to their webpage.

https://www.gov.uk/guidance/hmcts-weekly-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak

Although their webpage breaks down important updates by area of law, there are some generic updates. Particularly of note are:

• Cloud Video Platform (CVP) is being rolled out to Crown and Magistrates’ Courts across England and Wales to support video enabled hearings. This video platform is being extended to civil and family courts, to enable more remote cases to be heard safely and securely.
• On Monday 17 August 2020, Hertfordshire Development Centre, Middlesbrough Town Hall, Swansea Civic Centre, and Telford Annex became operational as Nightingale Court sites.
• From week commencing Monday 17 August 2020, Liverpool Crown Court will be the first court to test COVID-19 Operating Hours.

Currently court and tribunal buildings are divided as follows:

• open courts – these buildings are open to the public for essential face-to-face hearings.
• staffed courts only – staff and judges will work from these buildings, but they will not be open to the public.
• suspended courts – these courts will be temporarily closed.

The list of notable changes to Criminal Proceedings provides insight into how the Courts are adapting the new COVID-19 era trial procedure. This is all subject to change but believed correct as at the date of publication.
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Criminal

• From Monday 17 August 2020, jury trials will have recommenced in 64 Crown Courts.
• Liverpool Crown Court is now able to run jury trials safely across an extra three courtrooms after the installation of Plexiglass screens.
• Currently in process of installing plastic screens in Court rooms to enable more jury trials to take place. 100 Court rooms in over 50 buildings have been identified as having potential to have these screens installed.
• Crown Courts are dealing with a variety of work, most of which being conducted remotely. This includes sentencing hearings and all urgent applications including applications for bail and applications to extend custody time limits. Pre-trial preparation hearings and further case management hearings are also being conducted remotely.
• Magistrates’ courts and the youth courts are now dealing with all criminal business types. Urgent cases such as those where the defendant is being held in police or prison custody will continue to take priority.
• The number of summary trials now being listed is increasing, but priority is to cases involving an allegation of domestic abuse and Domestic Violence Protection Orders. Regulatory environmental/ transport related trials are still low down the priority list.
• The judiciary has published a note of listing in Magistrates’ Courts during coronavirus outbreak. This outlines which type of cases take priority over other cases.