'Covid Ate My Homework...'

• Published date: 26 May 2021
• Subject Matter: Coronavirus (COVID-19), Reporting and Compliance, Operational Impacts and Strategy
• Law Firm: Stevens & Bolton
• Author: Sarah Murray

If there was a bigger surprise than the speed and impact with which the pandemic hit us, it was the adaptability of the commercial courts. Who would have thought that our traditional court system would pivot so easily to a world of virtual hearings and trials? Of course, like a swan looking serene on the surface but paddling furiously underneath, huge efforts are being expended by all court users to keep the train on the tracks. And court users are human too, grappling with remote working, home schooling and self-isolation. It is, therefore, not surprising that COVID is cited as a reason for lawyers and litigants struggling to comply with court deadlines. However, from the early days of the pandemic, the courts have been reluctant to allow court users latitude based on the 'COVID excuse'.

The beginning of the tale

From the outset, the guidance from the Lord Chief Justice was directed to the importance of the wheels of justice continuing to turn. On 19 March 2020, before the first lockdown was imposed, he stated (with gloomy but accurate prescience) that 'this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months... Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage'.

Practice Direction 51ZA, implemented on 2 April 2020, allowed parties to agree longer extensions of time between themselves. However, it also made it clear that the court would weigh the impact of the pandemic against 'the proper administration of justice'. It ceased to have effect from 30 October 2020 and has not been renewed.

The tone was set in April 2020 in a dispute between Heineken and AB InBev ([2020] EWHC 892 (Pat)). AB InBev asked for an extension of time to file reply evidence and a delay to the trial start date because of the difficulties caused by the pandemic. In particular, lawyers were grappling with remote working restrictions and team members either becoming ill with COVID or being in isolation. The judge granted a modest extension of time for reply evidence to take account of the general disruption. However, he was unimpressed by the arguments as to the impact of illness and isolation, pointing to the overall size of the legal team and the fact that 'a degree of self-isolation can increase productivity'. He further noted the efforts being...