Legal implications of COVID-19 – Selborne Chambers Bulletin – Issue 1
In the course of the ongoing COVID-19 crisis, Selborne Chambers is providing you with a series of bulletins on the legal implications of the pandemic. In this first bulletin, Daniel Webb and Maxwell Myers address the procedural guidance issued so far and what we know of the imminent emergency legislation.
Selborne Chambers remains open during this time. If you have any queries or requests in respect virtual meetings or instructing us during this time, please do not hesitate to contact a member of the clerking team on +44 (0)20 7420 9500 or at firstname.lastname@example.org.
Perhaps the most far-reaching statements issued so far are those of the Lord Chief Justice. The key points from the 19 March 2020 statement (here) are:
- The judiciary is committed to continuing with court work – it is a vital public service;
- “The default position now in all jurisdictions must be that hearings should be conducted with one, more than one, or all participants attending remotely”;
- Procedural rules are “flexible enough to enable telephone and video hearings of almost everything. Any legal impediments will be dealt with”;
- This is not limited to interim hearings: “Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology”; and
- Useful guidance is given for litigants in person (“LIPs”), those with critical jobs (e.g. NHS, police), trials, possession proceedings, injunctions and appeals.
In the 23 March 2020 update (here), it was stated in respect of civil courts that:
- “Hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety”.
The Business and Property Courts have issued a Remote Hearings Protocol (revised edition here). Whilst echoing much of the Lord Chief Justice’s first statement, it adds:
- A recommendation that parties be proactive in enabling fixed hearings to be heard remotely – any remote communication method can be considered;
- A mechanism by which the Court will propose a way forward for an upcoming hearing, and parties can express their disagreement (see §12-14); and
- Guidance on how to prepare for a remote hearing, including the preparation of electronic bundles.
Much of the above is echoed in the Civil Justice Remote Hearings Protocol (here).
As for County Courts, guidance has been issued for Central London and other London County Courts, from 18 March 2020 (here, but note the update below). It deals with re-listing live hearings to telephone hearings:
- HMCTS is to re-list hearings as telephone hearings according to certain criteria;
- Parties can apply for the same “in the usual way and will require referral to a judge” – we would suggest seeking agreement with the other side before approaching the Court with a draft order. If making contact with the Court is difficult, the Circuit Judges have clerks whose contact details are in the Business and Property Courts Guide;
- There is a non-exhaustive list of the matters generally suitable for re-listing as telephone hearings;
- Hearings with disputed live evidence are said not to be suitable (although it could be argued that the Lord Chief Justice’s statements, referred to above, supersede or refine this – and note the update below). Hearings with certain categories of LIPs (e.g. those “known or suspected to be homeless”) are said not to be suitable either – but otherwise hearings with LIPs can be re-listed as telephone hearings (but again note the update below); and
- Draft directions are provided at the end of the document – the default position is that a legally represented Claimant will arrange the telephone hearing.
This morning (24 March 2020), the Chair of the Chancery Bar Association (“ChBA”) sent the following update to members:
- “The ChBA has been informed by HHJ Johns that the senior judiciary have decided that no hearings which require people to attend are now to take place in the County Court until further notice, unless there is genuine urgency and no remote hearing is possible. All cases currently being heard will be adjourned part heard so that arrangements can be made, where possible, to conduct the hearing remotely. So far as the Central London County Court is concerned, all face to face hearings at Central London today are being adjourned to a date to be fixed so you do not need to attend. We cannot say what the position is in other courts at this point.”
The Property Chamber has also written to users (here):
- All cases are being reviewed for postponement. Most cases have been postponed. A similar review will take place on a four-week rolling cycle; and
- Processes are being put in place to deal with new urgent applications. These may be made by email (and addresses are given).
In terms of other guidance:
- HMCTS’ rolling guidance on COVID-19 is here.
- The Chair of the ChBA has stated that “It is not in the public interest, and contrary to government policy, for groups of barristers, solicitors, and clients to congregate together for pre-trial conferences, or to join a remote hearing from, for example, a solicitors’ offices”. Where a remote hearing etc is not achievable, “the damage to the public interest needs to be drawn to the judge’s attention when he or she decides the format of the hearing and whether the hearing should continue at all”.
New emergency legislation—what we know so far
On 18 March 2020, the Government announced a “radical package” of emergency measures designed to protect both landlords and tenants affected by COVID-19. The Government press release (here) refers to a number of significant interim changes affecting the private-sector rental market. These measures include:
- A three-month moratorium on the issuing of new possession proceedings;
- The extension of a three-month mortgage payment holiday to Buy to Let mortgages;
- A widening of the ‘Pre-action protocol’ on possession proceedings, with a view to encouraging engagement between landlords and tenants to resolve disputes; and
- New guidance for landlords to show “compassion” for tenants affected by COVID-19, by allowing them to stay in their homes wherever possible.
On 23 March 2020, the much-anticipated Coronavirus Bill was released (here), which introduces further measures that are likely to affect significantly the private-sector rental market and must be carefully considered by landlord and tenant practitioners. The principal changes introduced by the Bill are:
- A moratorium on forfeiture of business tenancies for rent arrears from the day after the commencement of the Act until (at least) 30 June 2020 (see NC30); and
- An extension (generally of either one or two months) to the Notice requirements for possession of residential properties following service of ss.8 & 21 Notices (see the Schedule to the Bill). Notably, this departs from the Government’s previously proposed three-month moratorium on the issuing of residential possession proceedings.
For forfeiture proceedings commenced prior to the Act coming into force, the effect of the legislation will be that delivery up of possession will not be ordered until after 30 June 2020.
Importantly, the legislation also includes provision for extending the relevant period beyond 30 June 2020, as the full implications of the COVID-19 pandemic become known.
At the time of writing, the Bill is being debated by the House of Commons. It is expected to be approved by the House of Lords and to obtain Royal Assent on 26 March 2020.
It is clear that the main policy objective behind the legislation is that no private-sector tenants will be forced out of their homes during the crisis. The vast majority of the proposed changes (save the introduction of a mortgage payment holiday to Buy to Let mortgages) are designed to protect tenants.
Housing Secretary Robert Jenrick MP has stated that: “The government is clear – no renter who has lost income due to coronavirus will be forced out of their home, nor will any landlord face unmanageable debts. These are extraordinary times and renters and landlords alike are of course worried about paying their rent and mortgage. Which is why we are urgently introducing emergency legislation to protect tenants in social and private accommodation from an eviction process being started. These changes will protect all renters and private landlords ensuring everyone gets the support they need at this very difficult time”.
This bulletin was revised on 24 March 2020 to take account of updated guidance.