COVID-19: An unprecedented disruption to the world’s court systems

An updated version of this article was published on Friday 20 March 2020.

COVID-19 has rapidly developed into a pandemic. This escalation has led to the implementation of state-controlled measures designed to contain and delay the spread of the virus. In light of these new measures, we review the impact of coronavirus and the implementation of protective measures within global court systems, including how procedural deadlines and time bars may be affected.

In England and Wales, we are not aware of any court hearings being cancelled or rescheduled because of coronavirus. Indeed, HMCTS has stated “the business of our courts and tribunals continues.” If a party tests positive for coronavirus, they should immediately contact the court or tribunal in which their hearing will take place.

The court can consider the use of audio or video links in appropriate circumstances where attendance is not required. This also means that individuals who may have to self-isolate will still be able to participate in hearings. While yesterday’s transition to the ‘delay’ phase of the UK’s government plan has yet to result in any significant social distancing measures, it is likely to only be a matter of time before both parties’ abilities to attend hearings and the availability of court resources are impacted. At that point, changes will need to be introduced to ensure that courts can function during the pandemic.

Likewise, it is inevitable that some parties may struggle to comply with court timetables as a result of the virus impacting upon their personal or commercial circumstances. In such cases, we would hope that most parties and their legal representatives would take a common sense approach to such situations, working together to provide a level of flexibility. It should be remembered that the time in which to comply with a rule, practice direction or court order can be extended by written agreement between the parties up to a maximum of 28 days, provided such an extension does not have an effect upon any hearing dates.

While the UK prepares for increased disruption to business over the coming days and weeks, we look at how the courts in the most severely affected countries have adapted to the coronavirus outbreak. We consider the following questions:

• Are the courts operating normally?
• What systems are in place to reduce the spread of coronavirus?
• What is the effect on procedural compliance?
• What impact if any will there be on time bars?

Hong Kong

• A GAP or ‘generally adjourned period’ was implemented in January 2020. All non-urgent hearings were adjourned. Although all court registries were closed, the High Court registry has reopened as of 9th March operating a triage system in respect of claims. The District Court registry will reopen on 13th March. GAP is intended to operate until 23rd March 2020
• Urgent hearings, including admiralty matters, will be heard via the Duty Judge System. As of 2nd March, documents can be lodged but not filed with the court. Judges are at liberty to give directions via email
• As the court offices are closed, any procedural deadlines will be extended accordingly, pursuant to IGCO/Interpretation and General Clauses Ordinance (Cap 10)
• It is possible that the IGCO will also extend the limitation period for common causes such as contract and tort e.g. the 6-year limitation period in which to commence claims. However, this should not be assumed and advice should be sought if a time bar is approaching, especially for time bars that may be considered “substantive” (e.g. under the Hague Visby Rules) rather than procedural

Italy

• The courts have suspended all but the most urgent cases between 9th March and 22nd March
• Filing can be undertaken electronically, so physical attendance at court is unnecessary
• Deadlines in respect of suspended hearings only will be deferred
• All time bars are operating as normal

South Korea

• Hearings listed in March have been postponed but the court system itself is operating normally
• Submissions and filing can be undertaken electronically
• Procedural deadlines remain unchanged
• Time bars and limitations are operating normally

China

• Hubei, the capital of which is Wuhan, is the only province that is on lockdown. The courts in all other provinces are operating normally, albeit with a limited service due to government restrictions on travel
• Unless urgent, hearings listed in February and March have been rescheduled. Court processing is also subject to delays
• Courts are encouraging hearings held via video link. Alternative dispute resolution is also being encouraged
• All time bars are operating normally

Portugal

• The courts are operating a highly limited service
• The courts are dealing with only urgent matters, where fundamental rights are at stake
• The courts have suspended all but urgent matters

Germany

• Special measures are not currently operating in the context of coronavirus
• It is anticipated that, over time, a signifcant number of hearings will be postponed
• It is also anticipated that, subject to an application, the court may extend deadlines for submissions in light of the current climate
• S203 of the German Civil Code (BGB) states that a time bar will be suspended by operation of the law, where the administration of justice is at a standstill

USA

• There is currently no universal policy in operation with regards to the US court system and coronavirus. However, individual courts are beginning to take steps to restrict access and/or adjourn cases and this is likely to increase as time goes on
• It is possible that telephone hearings and video conferencing may be used in appropriate circumstances should the virus prevent physical court attendances. Courts have electronic filing capabilities
• In respect of procedural deadlines, there may be some scope to seek flexibility on the basis of “excusable neglect.” However, this will be highly fact-sensitive and parties will be expected to mitigate any delays and act promptly, especially as the situation becomes more longterm in outlook
• In particular, time bars will operate as normal, especially as well-established eletronic filing systems allow for proceedings to be issued remotely

Spain

• The courts are operating as normal and no special measures have been announced
• Hearings are taking place and timetables are being adhered to
• Time bars operate as normal

The situation is constantly evolving and we are monitoring developments. If you require further guidance, please do not hesitate to contact us.

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