COVID-19 social distancing measures are having a knock on effect in the world of personal injury claims and in litigation generally, as both claimants and defendants face uncertainty in their ability to progress cases and meet court deadlines.

COVID-19 Personal Injury Protocol

Insurers and personal injury firms recognised the need to prevent opportunistic tactics during the COVID-19 crisis. They have joined together and published an agreed protocol, as an extension to the Personal Injury Protocol ('the COVID-19 protocol') in England and Wales which freezes limitation in all personal injury cases, effective from 24 March 2020. In return, claimants undertake to respond constructively to defendant requests for further time to serve a Defence.

Each signatory must have an escalation process (or 'hotline') in place where any individual failures to comply with the COVID-19 protocol can be reported to a senior member of the relevant organisation.

Insurers such as Aviva, AIG, AXA, NFU Mutual and RSA Group have signed up along with major personal injury firms such as Thompsons and Slater & Gordon. The full list of signatories can be found here.

The COVID-19 protocol is in place for a minimum of four weeks, with a review to take place week commencing 13 April. The Lord Chief Justice may have amended the CPR and pre-action protocols by then in any event, to include a moratorium on limitation.

Medical Experts

In relation to low-value whiplash Portal claims, MedCo has suspended its ban on remote video medical examinations (whilst maintaining the ban on telephone examinations). This will allow low value whiplash claims to continue to be progressed under the relevant protocol.

In respect of all other expert medical evidence, delays are of course expected as many experts commit to their NHS duties during the pandemic. Further, it is very unlikely that in-person examinations will take place as this would not be deemed 'essential travel' under current social distancing measures.

Some medical experts are continuing to provide reports by offering a video consultation with claimants. Defendants should be mindful, as it could put them on an unequal footing (in conflict with the CPR's overriding objective) if the claimant has already obtained their own medical evidence with the benefit of an in-person examination.

Defendants should consider whether their expert's opinion is likely to be restricted by the absence of an in-person examination and if so, seek a stay of proceedings to allow for this examination to be conducted in due course. These decisions will be on a case by case basis and experts should be asked for their input on whether the absence of an in-person examination is likely to restrict their opinion overall.

Personal Injury Litigation

Insurance and personal injury representative bodies have joined together to request the Lord Chief Justice enacts specific measures to allow more flexibility in the court process including:

  • A temporary change to the CPR r 3.8(4), allowing agreed extensions of time for complying with court directions of up to 56 days, in place of the current 28 day cap – this has now been granted via CPR Practice Direction 51za effective from 2 April 2020. If a party seeks an extension beyond 56 days and the opponent refuses, the party must file an application which will be decided by the court on paper rather than at a hearing, as would ordinarily be the case.
  • Improved communication from the courts. A lack of information on the handling of individual cases is creating unhelpful uncertainty.
  • An extension of telephone hearings with all parties attending remotely.

Prior to Practice Direction 51za, the High Court issued what is thought to be the first 'COVID-19 direction' at a case management conference in O'Driscoll v FIVE Bianchi SPA. It allowed the parties to agree extensions of time for up to 56 without further order from the court.

Longer extensions are likely to be required in a catastrophic injury case such as this one where each party has instructed seven medical experts and the trial period has been fixed for next year. It is inevitable that the parties could face significant delays in serving expert evidence in light of COVID-19 disruption.

Practice Direction 51za will avoid courts becoming overwhelmed with applications seeking to vary directions timetables. This is most welcome, particularly as judicial resources will be stretched further by the new priority system discussed below.

Priority Courts

Effective 30 March 2020, the work of all courts and tribunals has been consolidated into fewer (less than half of the usual) buildings in order to maintain the safety of all in the courts. The consolidation will ensure effective social distancing for all court users and for cleaning and security work to be focused on fewer buildings.

There will be 157 priority court and tribunal buildings open for essential face-to-face hearings which represents 42% of all courts and tribunals across England and Wales. Further information can be found here. Courts and tribunals have been categorised as follows:

  • Open courts – these buildings are open to the public for essential face-to-face hearings
  • Staffed courts – staff and judges will work from these buildings, to support remote hearings and progress cases, but they will not be open to the public
  • Suspended courts – these courts will be temporarily closed

Media and members of the public will be able to attend priority court hearings in person, if safe to do so in line with Public Health England guidance, thereby ensuring the principle of open justice.

Where this is not possible, judicial consideration will be given to them joining a hearing remotely or a transcript provided afterwards.

Remote hearings will continue to take place in civil and family matters where possible and decisions on how to conduct individual hearings remain at the discretion of the judiciary.

The English Courts and Tribunal Service (HMCTS) provide a daily operational summary which can be found here and applies across civil and criminal cases in addition to tribunals.

Contributor

Carly Forrest

Partner