How do I access the scheme?

The courts are seeking to adapt to our new circumstances and have urgently been looking to introduce new ways of working. The courts have been testing out different ways of holding court hearings. The advice is changing almost daily and some courts have been developing local practices. Going forward the court, the parties and their representatives will need to be more proactive about all forthcoming hearings.

Everyone involved in the case is to consider as far ahead as possible how future hearings should best be undertaken and work collaboratively. It will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely. Some witness cases will also be suitable for remote hearings. The parties just need to ensure that everyone involved can use the technology suggested.

The courts have been looking at and held remote hearings using, non-exhaustively, BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. Bundles for the hearing will be prepared and circulated electronically.

If the hearing cannot be held remotely because the parties do not have the requisite technology or the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time, then it may be that the case will need to be adjourned. We are hearing of trials being adjourned and that they will not be re-listed before at least September.

HMCTS has advised that several priority courts will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively. It publishes a daily operational update from the courts and they aim to update it by 9am. The link is https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak.

Also, the courts have circulated a civil listing priority list with Priority 1 listing work which must be done and which includes injunctions, any applications in cases listed for trial in the next three months, any applications where there is a substantial hearing listed in the next month and all Multi Track hearings where parties agree that it is urgent.

In the Priority 2 list, which consists of hearings which could be done, are enforcement of trading contracts, trial involving the survival of a business or the insolvency of an individual, small and fast track trials where the parties say they are urgent, and appeal in these kinds of cases.

Similarly, in arbitration proceedings, the parties and arbitrators are being encouraged to utilise technology to make sure that hearings take place. We have heard of Zoom being used very successfully for multi-party proceedings.

The Government has produced workplace guidance for employers, setting out 2 key messages for employers:

• Continue to make workplaces as safe as possible; and
• Encourage workers to heed any notifications to self-isolate and to support them while they are require to isolate

Government guidance can be accessed here: How it works (an overview) and Workplace guidance for employers.

The Act was obviously subject to much debate and criticism as the Bill passed through Parliament. It is difficult to properly assess any gaps until after the necessary secondary legislation has been published and comes into force (along with the remainder of the Act), but some of the likely issues include:

• The impact on the insurance market, and the (lack of) availability and increased cost of insurance in light of the provisions of the Act
• How the introduction of retrospective claims will affect the market, both in relation to how parties might go about trying to prove matters which are 30 years old, but also the lack of certainty for those potentially on the receiving end of these claims which they previously had by virtue of the Limitation Act provisions
• Whether the definition of higher risk buildings is correct, or will require some refinement.

The Martlet v Mulalley case provides some useful observations and clarifications, for example that designers cannot necessarily rely on a ‘lemming’ defence that they were simply doing what others were doing at the time, that ‘waking watch’ costs are generally recoverable, and commentary on certain specific Building Regulations. The judgment however made clear that much of the case turned on its specific facts, so it is useful from the perspective of providing some insight as to how the Courts will deal with cladding disputes in future, rather than setting significant precedents to be followed.

CMA guidance suggests that it will not take enforcement action in respect of agreements which:

• Are appropriate and necessary to avoid a shortage, or ensure security, of supply
• Are clearly in the public interest
• Contribute to the benefit or wellbeing of consumers
• Deal with critical issues that arise as a result of the Covid-19 pandemic
• Last no longer than is necessary to deal with these critical issues

The Coronavirus pandemic will have impacted businesses in many different ways, but some of the most likely impacts that could have a legal implication are as follows:

• Services were not performed in accordance with contract during the period of disruption. This could be a reduction in volume of services performed, a suspension of services, or performance in a way that does not comply with contractual KPIs
• Late delivery or non-delivery of goods because of factory closures, or disruption in the supply chain
• Changes being agreed between parties to contracts to deal with the consequences of the Covid-19 outbreak