Brunner: Government advice incompatible with being at court
Barristers who follow government or Public Health England guidance on Covid-19 will not be in breach of their professional obligations, the Bar Standards Board (BSB) stressed yesterday.
But while the Bar’s regulator outlined its approach to the coronavirus in detail, the Solicitors Regulation Authority (SRA) has not.
The statement came amid growing clamour from the profession to close courts and tribunals and also developments in personal injury and conveyancing.
Regulatory obligations
With its statement about following official guidance, the BSB said barristers have then to ensure they complied with any obligations arising from doing so, particularly duties to the court and clients.
This meant that barristers who have to cease to act or return instructions, for example, should “clearly explain to your client or solicitor the reasons for doing so”.
The BSB also cancelled the April sitting of the centralised Bar professional training course and Bar transfer test examinations.
“This is consistent with the advice about travel and social distancing. The next scheduled opportunity to take the centralised exams will be August 2020 but we will need to keep this under review as the situation develops.”
The fluid nature of the situation meant the BSB was unable to give “any definite assurances” about when potential pupils could fulfil all the requirements necessary before commencing pupillage.
“The impact on chambers is also as yet not quantifiable. We are very conscious that this is an uncertain and worrying time but we will continue to talk to course providers and to the Inns and to work together to provide opportunities for requirements to be fulfilled at the earliest opportunity.”
The BSB is also reviewing the position for pupils unable to attend training courses that they need to complete before being signed off from their non-practising period of pupillage.
Asked if the SRA was going to issue similar guidance, a spokesman told Legal Futures: “We’ve been supporting firms and solicitors with specific queries, as well as working with the Law Society. We are keeping the situation under close review.”
Bar Council guidance, meanwhile, said it has been told that some barristers were being asked to indemnify solicitors against fees, leading to a concern that debtor days would begin to increase.
“Whilst the [Bar Council’s Covid-19 working group] would be interested to hear of specific examples, the discussion of fees and payment arrangements must remain, in principle, a matter between the barrister and the instructing solicitor.”
Courts and tribunals
Social media has been awash with complaints from advocates about travelling to and attending court, given the government’s advice on social distancing, along with reports of cases being adjourned because of judges, panel members, lawyers and others self-isolating.
As we reported on Litigation Futures yesterday, a High Court master issued what was thought to be the first ‘Covid-19 direction’, displacing the normal rule that parties can only agree up to 28-day extensions of time.
This was followed by two statements from the Lord Chief Justice, Lord Burnett, who said in the first that it was “not realistic to suppose that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt”.
The second statement, in the evening, said that in all jurisdictions steps were being taken to enable as many hearings as possible to be conducted with some or all of the participants attending by telephone, video-link or online.
“Many court hearings will be able to continue as normal with appropriate precautions being taken. We must make every effort to maintain a functioning court system in support of the administration of justice and rule of law.”
However, he said Crown Court trials presented “particular problems” because they required the presence of many different participants.
“Given the risks of a trial not being able to complete, I have decided that no new trial should start in the Crown Court unless it is expected to last for three days or less. All cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned.
“These cases will be kept under review and the position regarding short trials will be revisited as circumstances develop and in any event next week. As events unfold decisions will be taken in respect of all cases awaiting trial in the Crown Court.
“Trials currently underway will generally proceed in the hope that they can be completed.”
A statement from the Criminal Bar Association said it had received many reports of court users either self-isolating or attending court exhibiting the signs of the virus.
“In practice this is meaning that jurors and juries across the country are having to be discharged in ongoing trials and an ongoing public health risk in our courts with inadequate procedures in place.
“Similarly levels of hygiene on the court estate are failing to meet basic standards, for example no soap which in the current situation exposes court users to unacceptable risks.”
The CBA expressed concern at the lack of clear guidance for barristers, noting “the strenuous efforts being made by the senior judiciary and others to deal with these unprecedented issues”.
It continued: “The CBA considers that the current risks posed to court users, including our members, by the continuation of jury trials at this stage, absent proper procedures and protocols being put in place, is too great.
“Court hearings should be limited to those considered essential for the time being, with others utilising phone and videolinks where appropriate and subject to proper safeguards.”
Kate Brunner QC, leader of the Western Circuit, tweeted: “You may well consider that the government advice is incompatible with your travelling to, and being at court. I do. If you do as well, then please don’t go to court.”
Some courts were making allowances, it was reported. Gordon Exall, the well-known civil litigation blogger at Kings Chambers, tweeted: “Hearing today & defendant wanted medical report on claimant (appropriately) DJ Besford made an order that the medical examination could take place by Skype or other appropriate electronic method. Avoiding need for claimant to attend doctor personally.”
But not all courts were being helpful. Barrister ‘JR’ from 5KBW tweeted: “Have a bail app in Winchester (4 hr round trip through Waterloo). Simple application reserved to specific judge. Just spoke to clerk to try and arrange telephone hearing – ‘we don’t do telephone hearings at this court’.”
Jason Evans, crime and courts correspondent of the South Wales Evening Post, tweeted: “Here at Swansea Crown we are getting underway with an historic sexual abuse case. It’s scheduled for seven days. Two of the witnesses have already gone into self-isolation, and the court is trying to arrange Skype facilities. The chances of this case concluding? Next to zero IMHO.”
UPDATE 11.20am 18 March
The newly published draft Coronavirus Bill will expand the availability of video and audio link in court proceedings, including magistrates’ court hearings should an individual appeal restriction of movement due to quarantine measures.
It will also enable the expansion of the availability of video and audio link in various criminal proceedings, including full video and audio hearings in certain circumstances, and public participation in relation to these and other court and tribunal proceedings conducted by audio and video.
The government said: “The measures will enable a wider range of proceedings to be carried out by video, so that courts can continue to function and remain open to the public, without the need for participants to attend in person.
“This will give judges more options for avoiding adjournments and keeping business moving through the courts to help reduce delays in the administration of justice and alleviate the impact on families, victims, witnesses and defendants.”
The presidents of the employment tribunals in England and Wales, and Scotland have today issued guidance on the conduct of proceedings during the outbreak.
Personal injury
Notwithstanding the order of District Judge Besford, MedCo announced that the ban on the use of video examinations would not be lifted “at this time”.
It said: “The validity of diagnosis and prognosis opinions arising from video examinations is uncertain. There are also issues concerning privacy, and data security which will need to be resolved before video examinations can be undertaken as a matter of course.”
MedCo said it would keep the situation under review and was preparing a contingency plan. “In the meantime we expect medical reporting organisations, medical experts and legal representatives to provide their own sensible guidance to claimants before deciding to arrange, cancel or postpone any appointments.”
Conveyancing
The Council for Licensed Conveyancers (CLC) has joined the Law Society in saying that, “so far as is consistent with the interests of the client you should continue to work within the standard conditions of sale” rather than inserting some kind of coronavirus clause into the special conditions.
There was a risk of “unintended consequences” if an untested clause was added, it said.
“This may also put the underlying transaction and other transactions in the chain unnecessarily at risk.
“We suggest that there is a discussion with the client well ahead of the exchange of contracts of the likely consequences of delay and how these might be avoided or mitigated (eg if the client falls ill or has to self-isolate on the day of completion).
“Your standard report on title should already explain to the client the consequences (as set out in the standard conditions of sale) of either party failing to complete. The report should be updated to take account specifically of the risks associated with Covid-19 as discussed with the client.”
However, Rob Hailstone, who runs the 700-firm Bold Legal Group, told members he was worried that “by proceeding on a ‘business as usual’ basis, many firms could be inadvertently signing their own death warrants”.
He explained: “The situation could soon be critical. Transaction numbers are likely to fall and pre-exchange transactions that exist could stall and abort. They are saying this Covid situation could last a year. If it does, it could be game over for many, many law firms. And for those that survive, massive redundancies.
“In these unusual times, we need to do more than advise, we need to come up with a workable solution.”
He cited one solicitor who has urged the Law Society to formulate a specific condition and mandate that it is added to contracts, and not be subject to negotiation or alteration.
The solicitor said: “It is impossible and time consuming to get solicitors in a chain to agree additional conditions in the event of delayed completion due to medical isolation or lockdown as a result of UK government action or advice in respect of Covid-19. Such conditions need to be included and be identical in all the sale contracts throughout the chain…
“We cannot rely on parties acting in ‘good faith’. Without such a condition being directed by you the only option is to exchange and complete on the same day. This is clearly not acceptable for a chain of transactions. We need urgent action by you please.”
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