Civil court recovery: More in-person hearings and longer hours

Courts: Caseloads returning to pre-Covid levels

Up to two-thirds of civil hearings will take place face-to-face over the coming months as the caseload increases, with longer operating hours an option for courts if needed.

An HM Courts & Tribunals Service (HMCTS) update on its Covid-19 recovery plan highlighted the problems with a rapidly growing backlog at the employment tribunal, however, with some cases now being listed over a year in advance.

The service said it expected demand in the civil courts to increase compared to the past six months as specified claims returned to higher levels, while several months of accrued possession cases have been released now the stay has been lifted.

Over the summer, unspecified claims returned to normal levels of demand, with specified claims at more than 70% of pre-Covid levels and small claims and fast-track hearing levels at 80%.

In the Business & Property Courts, caseload has remained broadly consistent since March and claims have progressed much as they did before the pandemic, save for in respect of trials in excess of 10 days in the Commercial & Admiralty Court due to an increase in the number of trials of this length.

The Queen’s Bench Division and Administrative Court are also operating as normal.

HMCTS said the experience to date was that remote hearings took longer than those held face-to-face.

It expected the level of final hearings for tracked claims to return to pre-Covid levels this autumn, and by the spring for possession cases.

“Wherever possible we will look to facilitate face-to-face hearings, but our expectation is that remote hearings will continue to play an important role for the foreseeable future, given that social distancing will continue to limit courtroom capacity compared to pre-Covid levels.”

Far more courtrooms are now available than in the spring and HMCTS said more cases which needed to be heard in person – such as possession cases – would be.

“Altogether we expect to be able to support the delivery of up to two-thirds of planned hearings face-to-face in the civil courts, with the remainder heard remotely. Together this should enable the judiciary to sit planned sittings for the remainder of the financial year, although we may need to address some local capacity pinch-points.

“As a result, we expect to return final hearing levels for tracked claims to pre-Covid levels this autumn.”

HMCTS said it was also improving its ability to facilitate remote hearings through the roll out of the Cloud Video Platform (CVP) and putting 300 additional support staff for remote hearings in place before the end of the year.

Nonetheless, the government has decided that designated civil judges should have the option to implement extended Covid operating hours where they deem the local situation requires it; a working group found that sitting in the evening or at the weekend might be suitable for small claims and fast-track hearings.

Extended hours will be available under the end of the financial year – 31 March 2021. Nightingale courts will be another option to increase capacity.

HMCTS and the judiciary are examining other efficiency measures too, including increasing the capacity of the small claims mediation service.

“We aim to increase capacity to accommodate 90% of parties who want mediation, rather than the current 40%. We are recruiting additional mediators and restructuring ways of working to achieve this.”

The majority of First-tier Tribunals have avoided any significant growth in backlogs, HMCTS said, but the employment tribunal is a problem as the higher levels of claims before the pandemic and an initial reduction in capacity saw the backlog grow.

Since mid-June 2020, receipts have been above pre-Covid levels, with disposals averaging around 75% of pre-Covid levels until the end of September.

“We are now seeing disposal rates increase towards pre-Covid levels but there remains a significant gap between weekly receipts and disposals, and we expect demand to grow as recession impacts.

“Because of this, the backlog in single claim cases has grown by 30% [to some 400,000] since the start of March 2020, with some cases now being listed for over a year in advance.”

Nonetheless, HMCTS said, that by expanding hearing room capacity and maintaining high levels of remote hearings, it should not be necessary to introduce extended operating hours to achieve the planned level of sittings. But this will be kept under review.

Legislation to allow cross-ticketing of judges into the employment tribunal and enabling judges to delegate certain work to tribunal case workers and legal officers would also help, it said.

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