Impacts of Covid-19 on court hearings

Changes to Her Majesty’s Court and Tribunals Service (HMCTS) hearings, adjournments, and access to Legal Aid during the Covid 19 pandemic.

This content applies to England & Wales

Practical information

Court and tribunal buildings remain open. Court users are advised to read the NHS information about prevention, treatment, travel and staying at home. Hand sanitisers may be taken into the court or tribunal building.

Duty advice may not be available while the official guidance remains to stay at home.

Information for court and tribunal users on preparation and planning is available from the Ministry of Justice.

HM Courts and Tribunals Service (HMCTS) publishes daily operation summaries with updates about which services are affected.

Suspending all possession proceedings

From 27 March 2020 to 20 September 2020, ongoing possession proceedings were suspended to protect tenants and homeowners from the impact of the coronavirus pandemic.

For information on reactivating proceedings from 21 September, see COVID-19: Reactivation of possession proceedings.

On 21 August 2020, the government announced that the stay to possession proceedings under Part 55 would continue until 20 September 2020. On 22 August 2020, rule 55.29 of the Civil Procedure Rules was amended to provide for possession proceedings that started on or before 19 September 2020 to be stayed until 20 September.[1]

Initially, the stay applied from 27 March 2020 until 25 June 2020, and was later extended until 23 August 2020.[2]

The stay also applies to:

  • applications to enforce a possession order by a warrant or a writ

  • the requirement for the courts to give notices to the parties

  • time limits for the purpose of any rule

The Court of Appeal has ruled that the stay:[3]

  • is lawful and justified by the exceptional circumstances of the COVID-19 pandemic

  • is unconditional and imposed to protect public health and the administration of justice, so normal case management reasons would not be sufficient to lift it in an individual case

  • applies to appeals up to a final judgment in the Court of Appeal[4]

  • applies when the original proceedings were not possession-related but later became Part 55 proceedings, for example where a tenant applied for a declaration under Part 7 and the landlord counterclaimed for possession or where in the course of the original proceedings the parties agreed that an order for possession should be made[5]

In a case involving a long running appeal, the stay was lifted using the court's powers in Civil Procedure Rule 3.1 to hand down judgment. The order for possession was stayed until the general stay is lifted.[6] The court did not lift the stay in another case where the appeal hearing had not taken place before the stay was imposed.[7] The court commented that the appeal hearing would not have taken place during the period of the stay if the Court of Appeal ruling in Arkin v Marshall had been available at the time.

The stay does not apply to:

  • claims outside of Part 55, for example claims for an order for sale

  • claims for injunctions (injunctive relief)[8]

  • claims against trespassers to which rule 55.6 CPR applies

  • applications for interim possession orders (IPO) against squatters

  • applications for case management directions where the parties are in agreement

The suspension of housing possession claims protects all tenants and contractual licensees with basic protection, but does not apply to excluded occupiers, including lodgers and those in interim accommodation awaiting a decision on their homeless application, because they are excluded from the right to a court order.

See Protection for tenants and Mortgage possession process for more information about what other measures have been introduced to protect tenants and homeowners during the coronavirus (COVID-19) pandemic.

Telephone and video hearings

Where the suspension of proceedings does not apply, the current guidance from the Lord Chief Justice states that:

  • an in-person hearing may only take place where it is not possible to conduct a hearing remotely, for example by phone or an on-line video communicator, and it is possible to make suitable arrangements to ensure the participants’ safety

  • when assessing if a telephone or video hearing is appropriate, the judge will consider issues such as the nature of the matters at stake, or problems accessing the technology for participants

To participate in a telephone or video hearing users will need a phone or computer with internet access, a webcam and microphone.

HMCTS guidance on telephone and video hearings during the coronavirus outbreak is available. A new Practice Direction 51Y on video and audio hearings has been issued, later amended by the Practice Direction 51ZA to clarify that where a person wishes to listen to or view a recording of a hearing, they may request to do so without having to submit a formal application under CPR.

During the coronavirus pandemic, it is possible for the court or tribunal to order that a hearing conducted remotely is to be broadcast for the purpose of enabling members of the public to see and hear the proceedings.[9] Where the technology to do so is not available, temporary measures[10] have been introduced to allow each Chamber of the First-tier Tribunal and the Upper Tribunal to conduct a remote hearing in private, provided that the tribunal directs for it to be recorded, if practicable to do so. The relevant rules (apart from the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010) have been amended to allow for making decisions without a hearing in matters that are urgent, where the hearing is not reasonably practicable, and it is in the interest of justice to do so, even without the parties’ consent.

Extensions and adjournments

In effect from 2 April 2020 to 30 October 2020, Practice Direction 51ZA confirms that parties can agree on an extension of up to 56 days, so long as it does not put a hearing date at risk. If the parties are seeking an extension of more than 56 days, they must seek permission from the court and the court will have to take into account the impact of the pandemic when considering the application.

Many courts are adjourning hearings that are due to take place. Parties to proceedings will receive notification from the court that the matter has been adjourned. A new date for the hearing or trial will be issued once the matter has been relisted.

If a party in proceedings wishes to apply for an adjournment the associated fee may be waived in line with the government government guidance to court staff on adjourning hearings because of COVID-19. Applications should be made on form N244 and should state the reason for the request, the date the applicant began self-isolation or contracted the virus along with supporting evidence where available. The application should state if a telephone or video hearing is not appropriate, along with reasons.

Where both parties agree on an adjournment, it would likely be granted.

In a recent case, in which the High Court quashed the local authority’s decision to refuse a disabled facilities grant, the Court considered the impact of the pandemic and extended the time limit for the council’s compliance with the order to reconsider its decision from six to ten weeks, due to the restrictions on movement.[11]

Inspections by Tribunals

First-tier and Upper Tribunals can carry out inspections of premises and land as part of their decision-making process.[12]

During the coronavirus pandemic, the following rules apply:[13]

  • internal property inspections have been suspended from 19 March 2020 for six months

  • land and building exterior inspections are suspended between March 2020 and 30 June 2020

  • from 1 July 2020 Tribunals have discretion whether to inspect land and exterior of buildings

Suspending internal inspections is subject to ongoing monitoring and review and it may be lifted before the six months' period is up. Until lifted, Tribunals may rely on photographs and videos instead.

Service of money claims

Where a claim is not received by the other party for reasons related to the Covid-19 pandemic and a judgment by default is granted, it may be possible to ask the court to exercise its discretion to set the judgment aside.

In a case related to damages for data protection breaches, the High Court held that where the claimant’s solicitor had posted particulars of claim to the local authority’s office two days after the official lockdown started, it constituted a good reason under CPR 13.3(1) to have the subsequently granted default judgment set aside.[14]

Legal aid

Solicitors offices and advice agencies are likely to be temporarily closed to the public. Many solicitors and advisers are working from home. Legal aid contracts state that staff should have access to files and ensure clients know how to contact them. More information is available from the Legal Aid Agency.

See also the Legal Aid Practitioners Guidance on what the Legal Aid Contract and LAA COVID-19 Guidance Allows.

Last updated: 22 March 2021

Footnotes

  • [1]

    r. 55.29 Civil Procedure Rules 1998, as amended by r.2(a)-(b) Civil Procedure (Amendment No. 5) (Coronavirus) Rules 2020/889.

  • [2]

    Practice Direction 51Z, 27 March 2020, as amended by the 120th Practice Direction, 20 April 2020; Arkin v Marshall [2020] EWCA Civ 620; r. 55.29 Civil Procedure Rules 1998, as amended by r. 2(a)Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020 SI 2020/582.

  • [3]

    Arkin v Marshall [2020] EWCA Civ 620.

  • [4]

    Hackney LBC v Okoro [2020] EWCA Civ 681.

  • [5]

    TFS Stores v The Designer Retail Outlet & BMG (Ashford) Ltd v TFS Stores Ltd [2020] EWCA Civ 833 (note, the appeals concerned tenancies under the Landlord and Tenant Act 1954).

  • [6]

    Copeland v Bank of Scotland [2020] EWHC 1441 (QB).

  • [7]

    Bromford Housing Association v Nightingale and another [2020] EWHC 1532 (QB).

  • [8]

    University College London Hospitals Foundation Trust v MB [2020] EWHC 882 (QB).

  • [9]

    See s. 85A Courts Act 2003 and s.29ZA Tribunals, Courts and Enforcement Act 2007, as amended by s.55 and Schedule 25 Coronavirus Act 2020.

  • [10]

    rules 5A, 30(3A), 30A Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) 2008 SI 2008/2685, as inserted by rule 4 Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 SI 2020/416; rules 5A, 37(2ZA), 37A Tribunal Procedure (Upper Tribunal) Rules 2008 SI 2008/2698, as inserted by rule 5 Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 SI 2020/416; rules 6A, 33(2A), 33A Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 SI 2013/1169, as inserted by rule 9 Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 SI 2020/416; rules 48(3A), 48A Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 SI 2010/2600, as inserted by rule 8 Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 SI 2020/416.

  • [11]

    R (on the application of McKeown) v Islington LBC [2020] EWHC 779 (Admin).

  • [12]

    s.21 Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

  • [13]

    Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal 19 March 2020, as amended by Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal - Amendment Relating to Inspections by the First-tier Tribunal (Property Chamber) 23 June 2020; made under s.23 Tribunals, Courts and Enforcement Act 2007.

  • [14]

    Stanley v Tower Hamlets LBC [2020] EWHC 1622 (QB).