My client and/or the instructing solicitor have had to shut their offices part-way through the disclosure exercise as a result of coronavirus (COVID-19). What should we do?

My client and/or the instructing solicitor have had to shut their offices part-way through the disclosure exercise as a result of coronavirus (COVID-19). What should we do?

Produced in partnership with Chris Bryden of 4 King’s Bench Walk

Where an electronic document review platform is, or can be, used to prepare a party’s disclosure, the closure of their instructing solicitor’s offices part way through the disclosure exercise should not significantly disrupt it. Electronic platforms can be accessed by reviewing staff remotely, and any hard copy documents can be scanned into electronic format.

However, the requirement for offices to shut down may mean that disclosure exercises conducted solely on the basis of scrutinising paper documents, which cannot be carried out using a document review platform, will therefore be in jeopardy.

Varying disclosure order

In many cases involving disclosure, the urgency to complete the exercise will not be pressing and timetables can be varied or extended. Early contact with opposing parties is important in order to agree extensions of time, stays and, if necessary, consent orders to be approved by the court extending time for taking mandated steps.

Where the disclosure order needs to be varied, the time for compliance extended or the court’s guidance required, parties will need to make an application to court. For general guidance on making an interim application under CPR 23, see Practice Notes: Making an application and Courts’ power to manage factual evidence.

Usually, when an extension of time for complying with a disclosure deadline is sought, parties must consider how this will impact on the trial timetable. At present, it is unclear what the impact long term of the coronavirus (COVID-19) pandemic will be on the civil courts. It is to be expected that many cases will be postponed for lengthy periods of time due to an inability to conduct trials remotely. Despite the difficulty in predicting how these external factors may affect individual proceedings, applicants should still seek to address how an extension of time or variation of a disclosure order may impact the trial timetable. A revised timetable should be proposed taking into consideration the likely disruption to the courts.

General case management

Parties should also be carrying out early consultation with each other as to the viability of the case proceeding in the foreseeable future and whether it is appropriate for a stay to be put in place, thus suspending the court timetable including any disclosure exercise. For further guidance on stays of proceedings, see Practice Note: Stay of proceedings—when can you apply to stay a claim?

Where a case can be conducted remotely, significant time should be built into the timetable or revised timetable to allow for office closures, absence of key personnel and an ability, therefore, to comply with ordinary timescales for such exercises.

A limitation standstill agreement should also be considered. Standstill agreements may suspend the running of time for a defined period or extend the period of limitation to a specific date. For more information, see Practice Note: Standstill agreements to suspend or extend limitation.

How litigation is dealt with will vary on a case by case basis. The 'overriding objective' of the CPR, as set out in CPR 1, to enable the court to deal with cases ‘justly and at proportionate cost’ remains key at this time. As parties, it is important to liaise with opponents early and communicate with the court when seeking to extend deadlines and/or seek other case management changes. Whilst it is likely that the courts will look sympathetically on relief from sanction applications and will penalise opportunism (see Denton v White at para [42] and for guidance see Practice Note: Relief from sanctions—the courts’ approach), it is the responsibility of the party that will not be able to comply to seek to agree an extension of time with the other parties and make an application to the court.

The various guidance issued in the present coronavirus pandemic from the Lord Chief Justice, the President of Tribunals and the Presidents of the various divisions focusses on pragmatic steps to be taken in such circumstances. See:

• HM Courts and Tribunals Service identifies priorities during coronavirus (COVID-19)—LNB News 20/03/2020 21

• Coronavirus (COVID-19)—Civil and Family Courts guidance from Lord Chief Justice—LNB News 19/03/2020 93

For further information, see:

• Coronavirus (COVID-19) toolkit

• Coronavirus (COVID-19) implications for dispute resolution—overview

• Practice Notes:

◦ Disclosure—introduction, in particular section: Practical tips on conducting the disclosure exercise

◦ Courts’ power to manage factual evidence

◦ Business and Property Courts—the disclosure pilot scheme

◦ Disclosure—solicitors' obligations, in particular section ‘Co-operating with the other side

◦ Disclosure—parties' duties

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