The COVID-19 pandemic: practical advice for those involved in healthcare litigation

Following the government’s advice to avoid all non-essential travel and social contact in an effort to control the spread of COVID-19, the consequences of such restrictions on our everyday lives are being felt far and wide, and litigation is not exempt. However, if litigators and those involved in litigation take a pragmatic and sensible approach, showing flexibility and co-operation (as we are all required to do in any event to further the overriding objective), we can continue to progress claims and preserve our clients’ and your interests.

Limitation

• Where limitation is due to expire within the next few months (or possibly later) it may be necessary to agree a limitation amnesty, preferably for a fixed period of time rather than generally.
• The alternative is to issue proceedings and postpone service, but there is a duty on claimants to seek a limitation amnesty where possible and there may be costs penalties where that step is not taken.
• Where a limitation deadline is missed, an application can be made under section 33 of the Limitation Act. In determining that application, the court will consider the length and reasons for the delay, and if it was reasonably unavoidable because of the disruption caused by COVID-19, that is likely to be taken into account and potentially determinative of the application.

Issuing/serving proceedings

• A claim is brought for the purposes of limitation when received by the court, rather than when it is issued. In Pritam Kaur -v- S Russell & Sons Limited [1973], the court held that, if limitation expires on a day when the court is closed, it is extended to the day when it reopens.
• Where service of proceedings is imminent, consider agreeing service by email, in anticipation that there may be office closures. For claims, remember that NHS Resolution cannot accept service of proceedings, but trusts may nominate their solicitors.
• Indeed, now is a good opportunity to utilise email for all documents and correspondence. Last week, Simon Hammond, director of claims management at NHS Resolution, issued a request for hard-copy documents to be avoided wherever possible.
• Many chambers have also requested copies of documents and bundles electronically.

Experts/medical examinations

• Experts may cancel face-to-face medical examinations for the foreseeable future, either to comply with social distancing measures or to free up time for additional clinical commitments. Therefore, reasonable requests to vary directions should be agreed between the parties.
• In some cases, it may be appropriate for experts to conduct assessments by video or telephone. However, for many specialities this will not be feasible, particularly (but not exclusively) where a physical examination is required.
• Litigators should consider whether a video or telephone consultation will place their expert at a disadvantage if the other party’s expert has had the benefit of a face-to-face consultation. Indeed, experts themselves may insist on a face-to-face assessment to enable them to comply with their obligations under CPR 35.
• The court may have to determine whether an expert should conduct a remote assessment, either following an application or at the CCMC. In an unreported claim before District Judge Besford last week, an order was made that the medical examination take place by Skype or other appropriate electronic method.

ADR

• It may be necessary for RTMs or mediation to take place by phone or video. There are already a number of firms and chambers adopting this measure and it is preferable to cancelling ADR entirely.
• Where reasonable adjustments are not made, the court may still impose costs sanctions for failure to engage in ADR.

Trials/hearings

• There have already been instances of trials and hearings being vacated, either because those due to attend are in self-isolation, or because medical experts are required elsewhere to provide additional clinical duties.
• In Liverpool County Court, all CCMCs and general applications are being dealt with by telephone, all small claims hearings are being vacated, and HHJ Wood has directed that any fast track or multi-track trial can be adjourned until after 1 June 2020 at the request of either party.
• Last week, the QBD at the RCJ issued new guidance; court counters are closed, the Urgent Applications List is suspended and non-urgent hearings may be adjourned. Legal representatives are asked to consider whether agreement can be reached to adjourn any non-urgent hearings and inform the court. To accommodate any backlog, hearings will be listed throughout the summer (dependant on master availability) and, where possible, hearings will take place by telephone or Skype. While e-filing should be utilised, the RCJ is still requesting that hard-copy bundles are filed.
• The Lord Chief Justice has issued a message to judges in the civil and family courts stating that the default position must now be that hearings are conducted remotely wherever possible and that designated civil and family judges will need to take account of available resources, resulting in non-urgent work being removed from the list
• HMCTS issued additional guidance last week on the use of telephone and video technology.
• Paragraph 6.2 of PD 23A already provides that any allocation, listing, interim application, case management and pre-trial review hearings of less than one hour will be conducted by telephone unless the application is made without notice, the parties are unrepresented or there are more than four parties. However, this is not strictly applied and such hearings are often listed in person. Last week, HHJ Bird in Manchester directed that this practice rule be applied strictly and, further, extended it to hearings lasting more than one hour.
• Pursuant to paragraph 6.5 of PD 23A, a party can apply for any hearing to take place by phone but it will not usually be granted unless every party consents (para 6.7). The request should be made in the application notice or, where that was not done, ‘as early as possible’ (para 6.6).
• Where a party wishes to use video conferencing, an application for directions should be made (para 7). However, as many will have experienced in the past, video conferencing has its limitations and can impede effective participation of witnesses. Nevertheless, we must all adjust and there are already examples of complex and sensitive hearings taking place by Skype.
• Where it is necessary to vacate a trial or hearing, litigators should act promptly and seek the consent of all parties.

Directions  

• For various other reasons it may be difficult to comply with directions; it may not be possible to interview witnesses, comply with disclosure or obtain instructions.
• Pursuant to CPR 3.8(4), the parties can agree extensions of up to 28 days without an application. However, where longer extensions are required, an application will be necessary and should preferably be made with the consent of all parties.
• Last week, in O’Driscoll -v- F.I.V.E Bianchi S.P.A, Master Davison ordered that the parties could extend any deadline by up to 56 days without applying to the court. In another CCMC before Master Eastman, that period was extended to three months. This may be a sensible step to take, but it seems inappropriate to make pre-emptive applications of this kind in every litigated claim. At a CCMC in Manchester last week, DJ Moss commented that it should not be assumed judges will be prepared to extend CPR 3.8(4) in all cases as it may depend on whether further hearing or trial dates are likely to be jeopardised.
• Adjustments may be necessary to comply with directions and progress claims. For example, wherever possible electronic signatures should be used, and clients’ approval/reporting structures may need to be adjusted.

Finally, all parties should bear in mind the case of Denton -v- TH White Ltd [2014]; those who unreasonably oppose reasonable requests or applications are likely to be penalised, and opportunistic behaviour, particularly in the present circumstances, is not likely to find favour with any Judge. If we are sensible and kind to one another, we will all adapt and find a way to work through this.

If you require any further advice or information, please do not hesitate to contact a member of our health litigation team.

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.