The number of hearings in personal injury (PI) cases has halved since lockdown began, new figures have shown, with barristers calling for a presumption towards hearing, rather than adjourning, cases.
Data collected from 23 of the main PI sets across the country – collected by the Personal Injuries Bar Association (PIBA) – showed that the average weekly number of hearings which have taken place post-lockdown has halved from an average of 67 per chambers pre-lockdown to 34 since.
Looking at the weekly figures, its analysis said that whilst the number of hearings has increased after an initial collapse in the first fortnight after lockdown, “you have to be wary of how many of those were generated as a result of adjournments and also the type of hearing they are”.
It continued: “In addition, and perhaps most crucially, though the curve did begin to increase in each circuit, it is interesting to note that in nearly all circuits, in the last few weeks, the curve has flattened or only marginally increased, perhaps indicating a capacity issue with the courts and their infrastructures.”
In an attempt to assess the current position, PIBA compared the three weeks pre-lockdown with the last three weeks. This showed a reduction of about 43% in hearing numbers – from 1,253 PI hearings a week across the 23 sets – to an average of 715 some eight weeks into lockdown
PIBA chair Steven Snowden QC pledged to use the findings “as far and as forcefully as we can” to lobby the courts service and others to increase the number of hearings, and to assist the Bar Council in illustrating “the problems the profession is facing from the downturn in civil work and try to improve government financial assistance”.
Mr Snowden said PIBA and the Bar Council had “some success” this week in having the civil listing priorities for the county courts adjusted, “but we will continue to press for further revisions so that, for example, there is a positive presumption that CCMCs etc should take place”.
He added: “We are told that the senior judiciary are alive to the threat to the livelihood of the junior Bar, and they have asked for continuing feedback on listing priorities, which we will give.”
In its response to the Civil Justice Council’s rapid consultation on remote hearings, PIBA noted a difference in the views of senior and junior practitioners as to how the courts have coped.
“Senior practitioners will have developed advisory, drafting and conference practices, are not in court as regularly, and are in the High Court when they are. Many junior practitioners by contrast have almost exclusively court-based practices and have not been in court at all for the duration of lockdown.”
The response urged a presumption towards hearing cases, where practicable, rather than adjourning them.
It said “very little” was working well with the current arrangements – the failure to keep “even a reasonable proportion of hearings” in the county courts happening was the greatest problem, with PIBA identifying a lack of communication as the key issue.
“Notable exceptions to our knowledge include the Queen’s Bench masters and a pool of courts in the North (Manchester, Liverpool and Leeds) who have been proactive, have developed systems to work with solicitors and the Bar in respect of listing and hearings, and who have therefore managed to keep the number of effective hearings as close to normal as possible.”
The association complained that hearings were being pulled from the list the night before without explanation, “when they would be eminently capable of being done by phone or video”, and there was little evidence thus far of the struggling courts learning lessons from those that were performing well.
Where cases have been able to take place remotely, the reports have been “far more positive” – including a successful virtual pre-trial settlement hearing scheme in the county courts in Sussex.
PIBA said that, where things were working well, it has “generally involved court staff and judges being in the same location, or judges being completely computer-literate and equipped with appropriate technology, and benefitted from a well-planned protocol or preliminary hearing/exchanges of correspondence”.
Looking longer term, the response said that while interlocutory hearings involving no more than three lawyers were “generally eminently suitable for hearing remotely”, they were less suitable for other types of hearings for a variety of reasons.
These included the importance of justice being seen to be done, and the “obvious potential for witness tampering or assistance to occur”.
PIBA said: “Experience of members shows that during pre trial conferences many client/witnesses’ partners are in fact the driving force behind the evidence – that is likely to be continuing unseen by the lawyers/court, whatever warnings are given.”
It concluded by noting that the better-funded higher courts have functioned far better than the lower courts, “where previous problems have merely been exacerbated”.
The outcome of the rapid consultation, which was due to be published today, has been put back until 27 May because of the number of responses.