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Kerem Alev is an experienced litigator and advocate with higher right of audience who acts for businesses and individuals. Here he looks at the changes to the court system driven by COVID-19

The global outbreak of Covid-19 and strict lockdown measures imposed by the UK Government on 23 March 2020, which resulted in the banning of many people from leaving their homes caused disruption and undoubtedly interfered with the progress of claims in the Courts in England & Wales.

The Lord Chief Justice recognised the likely impact of Covid-19 on the administration of justice even before the lockdown in his announcement of 17 March 2020.

Following the lockdown, it wasn’t to be business as usual with the Courts. Indeed, it couldn’t be so we saw significant changes to the Courts processes.

In the beginning

Most Courts were closed for personal attendance. Many (but not all) parties with existing claims saw their forthcoming interlocutory hearings or Trial, which had been listed before the lockdown for hearing after 23 March 2020, adjourned, and quite often with late notice either on the day of the hearing or preceding day. With little direction from the relevant Court before notice, this meant parties (and their representatives) found themselves having little option but to continue investing valuable resources in complying with directions and preparing to attend a hearing which was in the scheme of things unlikely to be heard. For many, this would have caused extreme frustration.

Certain types of claims were also suspended. For some time Winding Up Petitions to wind up Companies were not listed for hearing at all.

Some Courts and Tribunals remained open for urgent matters only. For example, the First Tier Property Tribunal at 10 Alfred Place in London, and the Court of Appeal have not been issuing any new claims or applications until recently.

Residential property claims and some other claims falling within the scope of CPR 55, which normally make up a bulk of the County Courts weekly list remain stayed until the end of August 2020.

More recently & the future.

The Courts have adapted pretty quickly to the disruption caused by the pandemic with hearings and some Trials continuing remotely via telephone or video.

Actually, telephone hearings themselves are not new. They have been around for quite some time, but their use has been inconsistent, and probably they have been underused. One problem which has probably prevented their wider use is the need to book a specific time and this can be quite tricky for a busy Judge having to deal with a busy attended Court list as well.

However, there are many positives to be learned from this and it’s obvious that technology has a vital role to play in the administration of justice. We are now likely to see the use of video and telephone hearings more often. Senior Costs Judge Gordon-Saker issued a practice note for the Senior Courts Costs Office making it clear that remote hearings will continue to have a significant part in the future of that Court even after social distancing requirements are removed.

Mrs Justice Cockerill told a meeting of the Commercial Court Users Group recently that Court staff and Judges were actively thinking about keeping remote hearings as a default position.

Further, the Ministry of Justice and HMCTS have been working on a new video platform which enables remote cases to be heard by the Civil and Family Courts. Called the Cloud Video Platform it will presumably replace the likes of Skype for Business and Zoom which are currently used by the Civil Courts for video hearings.

Improvements are still needed in respect of electronic filing in the County Courts and Tribunals, and Court users must learn to improve how electronic documents and bundles are presented for use (some guidance on preparation of PDF Files with bookmarking, OCR and ensuring PDF page numbers are in sync with the bundle pages have been issued already), but it is apparent that we are in a new era. The pandemic has helped spur change to how Court hearings and Trials are typically conducted and had it not been for the lockdown, Courts would likely have continued to resist, or at least not prioritise, change.

Remote hearings, if used properly, can help minimise attendance costs as well as save time.

The Brooke Consultancy is a law firm and business consultancy offering Business Advice in the Round. We help businesses and individuals prosper. Click here to contact us.

Lynne Brooke is a solicitor with a wide knowledge of corporate and commercial law and is a trustee of Westminster Mencap and Kith & Kids and the Lifetime President of Disability Law service. In this Blog he writes about what to do if you’re considering a role as a Charity Trustee.

I have been involved in the Charity sector for over 40 years both as a legal adviser and as a Charity Trustee, and count many Charity Trustees as my friends.

Charity Trustees generally do a very good job, but it is easy to get it wrong; you may have read in the press about the recent problems at the Royal National Institute of Blind People.

My notes below have been designed to help someone thinking of becoming a Charity Trustee.

Trustees have overall control of a charity and are responsible for making sure it’s doing what it was set up to do. Trustees may be known by other titles, such as directors or committee members.

A Charity has a Governing document setting out the objects (i.e. the aims) of the Charity and other important provisions.

Where the Charity has no separate legal personality then its governing document is likely to be a Trust Deed and:

•  the Trustees will generally hold the legal title to the Charity’s assets
• the Trustees will be directly personally liable to third parties in respect of contracts entered into by the Charity eg relating to employees, premises, and suppliers
• the Trustees will be personally at risk if the Charity runs out of funds and is unable to meet its liabilities.
• the Trustees should ensure where possible that contracts include a clause limiting the liability of the Trustees to the amount of the Charity’s assets.

Where the Charity has a separate legal personality, such as a charitable company limited by guarantee or Charitable Incorporated Organisation then its governing document is likely to be the entities Constitution and:

• the separate legal personality will generally hold the legal title to the Charity’s assets
• the Trustees will not be personally liable to third parties in respect of contracts entered into by the Charity.

Given the differences in personal liability, once you have become a Charity Trustee it is worth considering changing the Charity so it has a separate legal personality.

Before becoming a Charity Trustee:

• familiarise yourself with the Charity’s Governing document, and keep it readily available for your reference as you should know its contents and comply with it
• familiarise yourself with the Charity Commission Guides which are available on its website and in particular read the ‘Essential Trustee’ Guide
• check that the Charity has appropriate insurance and its scope/caveats in respect of its activities
• check if the Charity is be permitted by its Governing Document to indemnify its Trustees who have acted in good faith and in accordance with their duties
• if the Charity has Trustee Indemnity Insurance, which gives Charity Trustees limited protection, check its scope/caveats, and whether you have to pay towards the premium

Becoming a Charity Trustee can be an extraordinarily rewarding experience but it is it is an important and serious role so if you decide to become a Charity Trustee remember:

• keep the Charity’s governing documents readily available at all time so you can refer to them and make sure everything done complies with them
• you may be subject to personal legal action by the Charity Commission or fellow trustees for breach of trust
• you may incur personal liability if the charity operates while it is insolvent. If there is any such risk the Trustees should protect the Charity and themselves by instructing an experienced insolvency practitioner at an early stage to monitor and formally advise; letting matters drift without such advice is a recipe for incurring personal liability.

Lynne Brooke is a solicitor with a wide knowledge of corporate and commercial law and is a trustee of Westminster Mencap and Kith & Kids and the Lifetime President of Disability Law service.

The Brooke Consultancy is a law firm and business consultancy offering Business Advice in the Round. We help businesses and individuals prosper. Click here to contact us.