“Tsunami of post-Covid litigation” could overwhelm courts

Guise: ADR needed to deal with claims

A “tsunami of litigation” powered by the Covid-19 pandemic could leave the civil justice system “overwhelmed” by the end of the year, a well-known solicitor and ADR specialist has predicted.

Tony Guise, director of DisputesEfiling.com, said removing the stay on housing possession claims, scheduled for the end of August, would on its own lead to an “avalanche of activity”.

Mr Guise, a past president of the London Solicitors Litigation Association, said the tsunami would start with the backlog of cases in the county courts and elsewhere.

He said anecdotal evidence suggested there were “at least 6,000 items of unanswered correspondence” at Birmingham County Court, while the delay before correspondence was answered at Manchester Civil Justice Centre had reached 10 weeks.

According to the latest information from the HM Courts & Tribunals Service (HMCTS), Mr Guise said that as at 11 June 23,732 civil cases had been adjourned because of Covid-19.

He said that even if the Cloud Video Platform being rolled out by HMCTS reached the county courts in time – it is due to happen over the coming months, the government said last week – it would not make much difference as it simply enabled cases to proceed by a different medium rather than expediting them.

Mr Guise said justice minister Alex Chalk told the justice select committee last month that civil fee receipts were down by 88% since the start of the lockdown.

In a white paper, Mr Guise argued that, along with possession cases, another source of pandemic-related claims would be arise from contracts where one party relied on a force majeure clause.

A further source of claims, whether at employment tribunals or county courts, would be alleged premature returns to work or unsafe working practices.

Mr Guise said the indemnity for healthcare workers against medical negligence claims granted by the Coronavirus Act 2020 would “only encourage” group actions or interest from claims management companies.

The solicitor said other potential clinical negligence claims related to the redeployment of doctors to treat patients outside their areas of expertise because of staff shortages during the crisis.

“In addition to the backlog and the force majeure/frustration claims there may be group actions based on, amongst other things, whether the government locked down the country soon enough to avoid deaths and personal injuries.”

Mr Guise said a “significant part of the tsunami” would be claims brought by “companies and traders able to afford court fees due to government Covid support measures”.

To prevent the courts being overwhelmed, he recommended an increase in the use of ADR.

“Without ADR firmly in the centre of the civil justice system and managed online, the civil courts will be overwhelmed.

“The tsunami will begin to interrupt the civil justice system from September 2020 with successive waves arriving from that month onwards as lockdown measures concerned with civil justice are progressively removed.”

Mr Guise recommended that more mediators or “neutrals” should be trained and a mix of private providers and those employed by HMCTS would work best.

Taking into account the experience of other jurisdictions, Mr Guise said gateways into ADR should be robust and integrated with the civil justice system, with the new system ready to go live by January 2021.

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