March 27, 2020

COVID-19 UK: Marine sector access to court and arbitration

The impact of Coronavirus on UK Court and Arbitration access.

Inevitably in current circumstances, UK Courts and Tribunals are facing challenges in continuing to provide services to Court users. The legal issues that we are currently seeing arise will inevitably require Court involvement, sometimes on an urgent basis. This short newsflash summarises the latest news regarding Court and Tribunal access in what remains a fluid situation:

The Commercial and Admiralty Courts

  • The Business and Property Courts, encompassing the Commercial and Admiralty Courts, issued a protocol on 19th March regarding remote hearings that included the following key points:
    • The current pandemic necessitates the use of remote hearings wherever possible.
    • The method by which all hearings, including remote hearings, are conducted is always a matter for the judge, operating in accordance with applicable law, Rules and Practice Directions.
    • Remote hearings will, so far as possible, still be public hearings.
    • Available methods for remote hearings include (non-exhaustively) BT conference call, Skype for business, court video link, and ordinary telephone call, but any communication method available to the participants can be considered if appropriate.
    • Bundles to be relied upon at the hearing must be submitted in electronic form.
  • The above points have since been adopted in a further Protocol dated 20th March applicable to all Courts in England and Wales.
  • By a Practice Direction effective from 25 March which supplements Part 51 of the Civil Procedure Rules, it has been confirmed that where it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.
  • The Commercial Court is seeking to keep hearings public where possible by use of audio broadcast available at Rolls Buildings.
  • We have already seen examples of hearings being held successfully by telephone and via Skype in the Commercial Court. The Admiralty Judge is scheduled to conduct a trial via remote access in May that involves witnesses and experts. The preference of individual Judges seems to vary, but currently Skype seems to be proving the most popular solution.
  • It should be noted that not all trials may be deemed suitable for remote hearing and we are already seeing cases where trial dates are being vacated and cases adjourned (CONVERSANT WIRELESS LICENSING SARL v HUAWEI TECHNOLOGIES CO LTD & ORS (2020) 25/03/2020).
  • Urgent applications to the Commercial Court, for example for freezing injunctions, are encompassed by the new protocol and as such remain available to parties where appropriate.
  • Arrest of ships in the Admiralty Court currently remains available via electronic filing.

The LMAA

  • For arbitration cases, the LMAA has confirmed that requests for appointment of arbitrators can continue to be processed by email and arrangements for Case Management Conferences in current cases may be made by arrangement with the parties, using FaceTime, Skype or Zoom, or by telephone conference call. The LMAA states that it is working with the IDRC and other concerned parties to promote the use of available technology to enable virtual hearings to be held as necessary. The LMAA has further confirmed that there should be no significant effect on cases proceeding on documents alone (which make up the significant majority of arbitrations under LMAA Terms).

The London Court of International Arbitration

  • The LCIA has yet to confirm arrangements for hearings but is continuing to administer new and pending cases via email and its online filing system. 

The International Chamber of Commerce

  • The ICC has confirmed that all offices of the Secretariat of the ICC Court and the ICC ADR Centre are operational and that staff members are working remotely. Parties and tribunals are encouraged to keep appraised of developments and “consider discussing their potential impact on pending proceedings, if and when necessary”. All hearings scheduled until the end of June in Paris or an affected area are being postponed or changed to virtual meetings.

It follows that the current message from the Courts and the arbitral bodies is that strenuous efforts are being made to ensure business as usual for the present, albeit via the use of technology. The continued availability of urgent applications, including arrest, is also significant. Parties will need to be flexible in their approach and to remain alive to the changing demands of the Courts and Tribunals as new practices develop.   

To access Clyde & Co's regularly updated global summary of Court and arbitration access click here.