UK & Europe
In light of the pandemic, businesses up and down the country have been forced to reconsider ways in which customer service is being delivered on a local and global scale alike, whilst adhering to Government mandated policy measures. The legal sector is no exception. Law firms have implemented a range of measures to ensure that clients' needs continue to be met, notwithstanding the current crisis.
This bulletin provides a brief overview of some of the legal and practical issues arising in relation to client work as a result of Covid-19 – and how they are being addressed.
Courts: remote hearings, remote working and changes to the law
Although the High Court and the Court of Appeal were initially said only to be dealing with urgent work, it is our experience that civil hearings are continuing remotely wherever possible by way of video or telephone conference. This includes even big-ticket commercial litigation involving numerous and/or overseas witnesses (for reported cases see: Re One Blackfriars Ltd, Hyde v. Nygate  EWHC 845 (Ch)).
This approach has been supported by the Coronavirus Act 2020, Regulations and the three new Practice Directions issued by the Courts. These latter include PD 51Y which provides for hearings to be conducted remotely and PD51ZA which allows parties to agree time extensions of 56 days (rather than the usual 28 days) in certain circumstances. (Our detailed briefing on the approach of the Courts in the UK and across the world can be found here).
However, it is also our experience that there is, understandably, some variation in the particular decisions being taken as regards adjournment (or otherwise), the preferred platform for remote hearings and/or the presentation of documentary evidence, depending on the Judge, the Court and the case. This in itself creates a degree of uncertainty when advising clients and impacts the risk landscape in which litigators are operating.
For matters that are going ahead, there are also risks with virtual hearings. These include the challenges of a technical platform which may be unfamiliar to some of the participants and potentially reduced quality of interaction through screens. These might be mitigated respectively through preparation in advance and through more focused submissions (perhaps more closely following the structure of the written submissions filed in advance). There is also the risk of inadvertently sharing more widely a message or confidential information intended only to be seen by one's own team (so note-passing might prudently be kept on a different platform and/or device to avoid accidents). But more positively, features such as "screen sharing" might, if used well, enhance an advocate's ability to present complex information.
Disclosure: hard copy documents and electronic disclosure
Parties to a dispute are under an obligation to preserve and disclose all relevant documents to the dispute including paper documents and electronically stored information.
Working remotely and without access to their offices, lawyers may have practical difficulties accessing and sharing hard copy documents in a disclosure review. Furthermore, creating, confidentially storing data (in accordance with GDPR), and sharing soft copy documents may also create practical and logistical challenges for disclosure purposes.
With the constant advances of technology, firms are starting to rely on more sophisticated IT platforms to manage and store sensitive data, which may form part of the disclosure process. Accessing data from such platforms, mobile devices, dealing with encryption and protecting against cybersecurity challenges may all be more difficult in the current environment, not least because clients, lawyers and support staff are all operating remotely.
With any type of litigation, parties are encouraged to seek to agree the parameters of electronic disclosure at an early stage in proceedings to avoid wasted time and cost – and never more so than now, when the logistical challenges make it more important than ever to anticipate difficulties and liaise as necessary with clients and opponents to find pragmatic solutions.
Documents: electronic signatures and service
Electronic signatures offer a flexible solution to one of the challenges of working remotely but their use poses risks.
Subject to statute or the document itself (if it otherwise provides), electronic signatures can be used to sign documents governed by English law provided that:
(i) The individual signing the document intends to authenticate it (i.e. they have an intention to sign and agree to be bound by the document being signed); and
(ii) Any formalities relating to execution of that document are satisfied.
There are a variety of forms of legally accepted electronic signatures including a typed name, an emailed scan of a wet ink signature, a copy and pasted JPEG signature or a signature using an electronic platform (eg Adobe Sign). The form chosen will depend on the document requiring execution, the practical options open to the parties and also the evidential weight/security of the different methods (eg some signing platforms may use fraud prevention techniques such as step authentication). Note too that electronic signatures will not suffice in all cases (eg documents to be lodged at the Land Registry, wills) and documents which require witnessing or notarising present additional challenges.
Turning to the service of documents, parties should seek to agree an acceptable approach to service of documents electronically, specifically where time-critical documents are concerned. Familiar issues of consent and authority to accept service are clearly at play. Less familiar are the new risks firms need to manage of being served by post when all are working remotely and/or served by email to an unmanned inbox. Mitigating steps would include redirected post and email footers/out of office messages expressly addressing the possibility of electronic service.
Know your client: due diligence
In light of restrictions placed on face-to-face contact, many law firms have adjusted their policies and procedures to satisfy their client due diligence processes, specifically where new clients are concerned.
Recent guidance issued by UK regulators, including the SRA (see further here) reminds firms to adopt a risk-based approach and outlines some of the options for electronic means of identification and verification as an alternative to in-person documentary verification. These include the use of digital services, gathering additional data to triangulate evidence provided by the client (eg IP addresses), the use of security codes to verify phone numbers/email addresses and video meetings to review original identification documents. The exact measures to be taken in each case will vary, but it will be appreciated that extra vigilance, and careful documentation of steps taken, will be required at this time.
Some of these new methods raise ancillary issues of their own, for example whether data subject consent is required to capture and store video or photographic evidence of personal information. Alongside these new issues, all the usual considerations when incepting new client matters also continue to need vigilance including conflict checks, consideration of credit risks and any bespoke provisions to be included in the retainer letter.
If you would like more information on the above and related practical issues, our colleagues Helen Rowlands (London), Henning Schaloske (Dusseldorf) and Anthony E Davis (New York) considered them as part of their seminar on 29 April on "Maximising Rewards and Minimising Risk in the Era of Remote Working: a Global View". If you would like to view a recording of that seminar, please contact Ellen Livett.