COVID-19 UK: Business As Unusual? Litigating In England During The Coronavirus Pandemic

• Published date: 20 May 2020
• Author: Ms Hatty Sumption
• Subject Matter: Corporate/Commercial Law, Coronavirus (COVID-19), Corporate and Company Law, Litigation, Contracts and Force Majeure
• Law Firm: Clyde & Co

Parties experienced in international trade will be generally familiar with the sort of economic events that can increase market volatility and counterparty risk. Inevitably, such market shocks tend to drive a spike in litigation, often on an urgent basis, as parties take steps to preserve and enforce legal remedies. The economic impact of the coronavirus pandemic causing widespread disruption across the world has proved to be no exception, resulting in a sharp rise in disputes reaching - or in the process of reaching - the English Courts. However, what is proving to be unprecedented in modern times is the disruption caused to systems of justice at exactly the time that they are subject to increased demand from businesses across the globe.

With restrictions on our daily lives seeming likely to last for some time yet, one of the unique challenges posed by Covid-19 is whether it remains possible to turn to the Courts for effective redress.

New rules for a new normal

The good news is that the English Courts are adapting quickly to keep the wheels of justice turning.

Proceedings in the English courts are governed by the Civil Procedure Rules ("CPR"), and different specialist courts, such as the Queen's Bench Division of the High Court, and the Commercial Court, have their own specific practice which supplements the CPR.

In response to the disruption affecting parties to litigation caused by COVID-19, the Civil Procedure Rules Committee has published two new Practice Directions, 51Y and 51ZA (reviewed in a previous update here), which amend the CPR with the aim of providing greater flexibility in English Court proceedings. New protocols have also been published by the different specialist courts, including the Business and Property Courts and the Queen's Bench Division, under whose remit most commercial disputes fall.

What does commercial litigation in England look like during the coronavirus pandemic?

For the most part, the work of the English courts continues, and parties can still expect the English judiciary to consider the substance of a commercial dispute as rapidly as possible.

Court officials are working remotely and, in our experience, are processing applications quickly and efficiently. There are, however, some important procedural changes to be aware of.

Deadlines

Practice Direction 51ZA allows parties to agree extensions of up to 56 days (instead of the existing 28 days) for certain procedural deadlines. In practice, this means that litigants have...