This article originally appeared in a Covid-19 Special Issue (April 2020).
Practice Direction 51ZA – Extension of time-limits and clarification of practice direction 51Y – Coronavirus – 1 April 2020
This PD is effective from 2 April 2020 and ceases to have effect on 30 October 2020.
Paragraph 2 of the PD amends Rule 3.8, replacing the reference to 28 days to 56 days. The amended Rule 3.8 will therefore read:
(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 56 days, provided always that any such extension does not put at risk any hearing date. [emphasis added].
Paragraph 3 confirms that, for an extension longer than 56 days, parties must make an application which will be considered initially on paper and then, where relevant, reconsidered at a hearing.
Paragraph 4 provides that: “In so far as compatible with the proper administration of justice, the court will take into account the impact of the COVID-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions.”
The Practice Direction will be welcomed by most practitioners, however undoubtedly many will feel that it does not go far enough. Prior to the issuance of PD 51ZA, an open letter, produced by Gordon Exall of the Civil Litigation Blog, called on the Rules Committee to permit parties to agree open-ended extensions of time, not least to avoid the courts from being clogged up with applications for extensions of time and/or relief from sanctions for months, or even years, to come. Readers may also be interested to know that the new PD follows allegedly the ‘first COVID-19 direction’ in which Master Davison granted permission to parties in a high value brain injury case to agree extensions of up to 56 days by consent without further order. It is not possible to know how the situation will develop further and whether any further changes will be made. One can only wait and see.
In practical terms, when considering paragraph 4 of PD 51ZA, parties ought to be ready to explain why COVID-19 has led to the application in question. For example, if it has not been possible to obtain witness statements from treating clinicians, a judge may want more information than simply stating the fact of the pandemic. This is particularly so where the connection to COVID-19 is not obvious e.g. if the treating clinician is a psychiatrist or a maxillofacial surgeon. It may be the case that there has been a significant knock on effect in the hospital leading to unavailability, or clinicians have been redeployed, or they have self-isolated. Parties ought to be ready to provide a context specific explanation of how COVID-19 has impacted on the case, and should not assume that judges will wave through extensions. They may, or they may not – we do not yet know – but it is better to be safe than sorry and collect as much information as possible.
Practice Direction 51Y – Video or Audio Hearings during Coronavirus Pandemic – dated 24 March 2020
This Practice Direction came into force on the day after it was approved and remains in force until the Coronavirus Act ceases to have effect.
The second paragraph of PD 51Y provides that, where the court directs that a hearing is to take place using video or audio technology, and it is not practicable for the hearing to be broadcasted in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.
The third paragraph states that if a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings. In this situation, it will not be necessary to make an order under paragraph 2 and such an order may not be made.
Paragraph 4 provides that a hearing held in private under paragraph 2 must be recorded, where that is practicable, in a manner directed by the court. Where authorised under s.32 of the Crime and Courts Act 2013 or s.85A of the Courts Act 2003 (as inserted by the Coronavirus Act 2020), the court may direct the hearing to be video recorded, otherwise the hearing must be audio recorded. On the application [read ‘request’] of any person, any recording so made is to be accessed in a court building, with the consent of the court.
Section 32 of the Crime and Courts Act 2013 enables the making, and use, of films and other recordings of proceedings, lifting (in part) the pre-existing absolute prohibition on photographs and recordings in court. The new Coronavirus Act 2020 inserted Section 85A of the Courts Act 2003. This provides that if the court directs that proceedings are to be conducted wholly as either audio or video proceedings, the court may direct that the proceedings are to be broadcast for the purposes of enabling the public to see and hear the proceedings or may direct that the proceedings be recorded for the purposes of keeping a record.
The judiciary.gov website confirms that this PD sits alongside the rules in Part 39, which permits hearings to be held in private in very limited circumstances. Therefore, a court may direct that a hearing is held in private either on the bases in CPR 39.2, or on the basis set out in the new Practice Direction.
Furthermore, the reference to ‘application’ in Paragraph 4 is to be read as ‘request’ and parties are not required to make a formal application under Part 23. This is clarified in Practice Direction 51ZA (above).
The purpose of this Practice Direction is to balance the need to ensure hearings can continue to go ahead, despite being in private, and also ensuring open justice. Early reports from journalists have reported reasonable success in accessing hearings remotely, albeit with some teething problems.
The speed at which the courts have managed to adapt to video/audio hearings has surprised many practitioners and commentators alike, and begs the question of whether the current situation will become the norm, once restrictions are lifted. It remains to be seen. Whilst many would welcome greater use of video/audio technology, particularly for case management and procedural hearings, it is essential to remember the potential challenges this may pose to open justice and legal journalism.