As of 20 April 2020, there were 159 open courts in England & Wales dealing with essential face-to-face hearings. Telephone and video hearings are increasingly being used for non-essential face-to-face hearings in light of the situation with Covid-19. The position as at 21 April 2020 is described in more detail below.
Court of Protection
Priority business at this time includes all urgent applications in the Court of Protection (“COP”) and certain other COP matters including applications for statutory Wills where the person is near end of life. The COP intends to continue work on welfare cases, and will endeavour to continue to deal with other matters, such as applications to make lifetime gifts on behalf of an incapacitated person, but these will not be a priority. It is possible that hearings that have already been listed in the COP diary may need to be adjourned to allow for priority cases to be heard.
In some instances, hearings are taking place online by video conference and the COP is continually updating its guidance on how such meetings will be allocated and run.
The Official Solicitor (“OS”) and her staff are working remotely, so applications that are underway and in discussion with the OS will continue to be dealt with as before, although the date on which an application is eventually heard might be impacted by the COP’s timetable and priority cases.
High Court of Justice – the Business and Property Courts of England and Wales and the Family Division
The High Court Contingency Plan was updated on 26 March 2020. The Plan identifies “urgent business” that will be dealt with during the pandemic as “that would warrant an out of hours application”, but this is ultimately a question for the relevant duty judge. For the most part, our contentious trusts and probate business is not likely to be considered as urgent business. Non-urgent business will also continue to be dealt with as far as possible, but urgent business will be given priority.
The Protocol Regarding Remote Hearings published on 22 March 2020 applies to the High Court and Court of Appeal (Civil Division) as well as the County Court, which is dealt with in more detail below. Whether or not a particular matter is suitable to be heard in this way is up to the discretion of the judge. It is perhaps more likely to be available in short (less than half day) and procedural hearings, such as certain costs and case management hearings. Particular consideration will be given to whether there are any issues around public access in line with the principle of open justice.
It is likely that many cases will not be considered by the relevant judge to fall within the scope of urgent business or to be appropriate for a telephone/video hearing. It is not yet known when the court will start to list new face-to-face hearings not considered by the judge to fall within the scope of “urgent business”.
It is more common for contentious trusts and probate matters to be issued in the High Court, but the following guidance may apply to some cases.
The list of priority cases for the County Court was updated on 21 April 2020. The list is separated into Priority 1 and Priority 2 work. Priority 1 work includes certain hearings where the parties agree that the matter is urgent. It also includes cases where a trial or substantial hearing has already been listed to take place within the next three months. Other than in those particular cases, for the most part, our contentious trusts and probate business is not likely to fall into the list of Priority 1 cases.
Priority 2 work includes applications for approval under Part 21 of the Civil Procedure Rules, i.e. where one or more of the parties is a “protected party”, such as a child or an incapacitated person for whom a litigation friend has been appointed. This also includes applications for summary judgement for a specified sum, preliminary assessments of costs and other hearings where the parties agree that the matter is urgent. It is possible that certain contentious trusts and probate business might fall within the list of Priority 2 cases depending on the matter at hand.
As with court hearings, it is possible for mediations to take place by way of video conference. Each of the parties would have their own private conference room (as would be the case for mediations held in person), which the mediator could request to join as required. Your solicitor will discuss this option with you in the event that it might be appropriate in your case.
Wedlake Bell will continue to deal with any ongoing matters with reference to the specific court guidance where applicable in the case of any pending applications and listed hearings. For the most part, it will be business as usual.