Coronavirus – Unable to attend court hearings or mediation

At the time of writing this, the government (Ministry of Justice and HM Courts and Tribunal Service) have yet to issue official guidance on what litigants (and witnesses) should do if they are in self-isolation due to the coronavirus and cannot attend court hearings.

In such circumstances, the appropriate step is to make an application to court as soon as possible for an adjournment on medical grounds. It is a good idea to always communicate with the opposing party and seek to agree any application in order to save time and costs for all parties involved.

Where an application for an adjournment is made on medical grounds, the court will normally expect to see evidence from a medical practitioner who is familiar with the patient and his or her medical condition. That evidence should identify what the medical condition is and what features of the condition is preventing the patient from participating in the court process.

Medical evidence submitted to court should also include a reasoned prognosis and describe what alternative arrangements other than an adjournment could be made to accommodate the party’s difficulties or medical condition. A party’s medical evidence will be scrutinised and will be considered as expert evidence.

Alternatives to personal attendance at a court hearing may include giving evidence via video link or conducting a hearing via telephone. An application should be made to court as soon as possible – again, it will be a good idea to seek to agree any proposed application with the opposing party. These alternative measures are within the court’s case management powers which include:

• Adjourning or bringing forward a hearing;
• Holding a hearing and receiving evidence by telephone or by using any other method of direct oral communication;
• Stay the whole or part of any proceedings or judgement either generally or until a specified date or event;

Ultimately however, the courts have complete discretion to decide whether an adjournment or any alternative measures will be allowed.

Similarly, if you are due to attend a mediation and are unable to do so due to self-isolation, contact the mediator and the other party as soon as possible in order to seek a postponement. You should also check the terms of the mediation agreement and/or the mediator’s terms of business for any specific provisions relating to postponement, illness of a party or a force majeure clause (i.e. unable to attend or comply with the agreement due to reasons outside of your control).

As mediation is less formal and more flexible than the court procedure, it is always best to communicate with the mediator and the opposing party as soon as possible.

Looking ahead

The current guidance issued by the NHS and Public Health England advises anyone with suspected symptoms of the coronavirus to remain at home instead of visiting a GP / hospital. This may pose a problem for litigants who wish to obtain medical evidence or a prognosis to support their application for an adjournment of an upcoming hearing on medical grounds.

It remains to be seen how the coronavirus will affect the administration of the courts and hearings in the UK.

For the time being, the government’s official published advice is for anyone who has been in contact with somebody with coronavirus or have returned from an affected area to stay at home and use the NHS 111 helpline.

The key is to act quickly. Notify the court and all other parties as soon as possible if you have travelled to any of the countries listed in category 1 or if you have travelled to any of the countries in category 2 and have developed symptoms. A list of these countries and categories can be found on the government’s website.