COVID-19 pandemic: UK cross-border claims – Update 2

Can we use electronic signatures in official documents for court?

In these unprecedented times, some parties have no option but to execute documents with an electronic signature. Under rule 5.3 of the Civil Procedure Rules 1998, the use of electronic signatures on court documents is permitted in England and Wales.

Does the court prefer electronic bundles during the pandemic?

The vast majority of hearings are taking place remotely and therefore electronic bundles are preferred. It is important to check on a case-by-case basis what the court prefers.

The court have released guidance on what form electronic bundles should take. Please contact us for further information.

How do we pay court fees during the pandemic?

The County Court and the High Court are still operational during this pandemic but it is not business as usual. The Court Service has consolidated the work of all courts and tribunals into 166 priority court and tribunal buildings. Please click here to view which courts are open or closed.

This means that the fees counter will not be accessible for payments in person for some County Courts so it is good to check first. In the High Court, the fees counter is closed, so payments cannot be made in person at all.

The Court Funds Office, which handles payments into court, has also introduced BACS (rather than cheque) payments. Again, electronic signatures are now accepted and used on the Court Funds Office Form 100 to pay court fees.

In addition to this, the Court Service has published guidance indicating that, when applications to adjourn civil or family hearings are required as a consequence of COVID-19, the court staff have a discretion to waive the court fee for the application.

Are court hearings still taking place during the pandemic?

Remote hearings are still taking place in civil and family matters where possible and decisions on how to conduct individual hearings remain at the discretion of the judiciary.

In addition to this, the Court Service publishes a daily operational update which includes a priority list, setting out the types of hearings which the County Courts must continue to hold. This includes freezing orders and injunctions and enforcement orders which do not involve bailiffs or High Court enforcement officers. The High Court Contingency Plan provides guidelines for urgent business in the High Court.

The position on all this is likely to change as reaction to COVID-19 develops. We would therefore advise contacting us directly for up-to-date information.

Are there any further changes to service of proceedings in the UK and other jurisdictions?

Service of proceedings is still an area of concern, because offices in the UK and abroad are mostly closed and therefore there is a risk that defendants may not become aware of proceedings in time to respond. Currently if a party is served during the pandemic, the usual time to respond applies, unless an extension is agreed (see previous update).

Furthermore, Senior Master Fontaine of the Queen’s Bench Division at the High Court has issued a guidance note advising that the service of proceedings and judicial / extra-judicial documents by the Foreign Process Section has also been suspended.

Parties can attempt service without Foreign Process Section assistance, provided the manner of service complies with the Service Regulation, the Hague Service Convention or any other bi-lateral treaty in force, which is applicable.

Service in a country which requires service through foreign governments, judicial authorities or British Consular authorities (normally transmitted through the Foreign & Commonwealth Office) is suspended.

To address this issue, our advice would still be to agree alternative methods of service between the parties and failing this apply to court for permission to serve by email.

Can you take witness evidence in respect of requests received from foreign courts?

There is 90 day suspension from 25 March 2020, or until further order, in respect of requests received from foreign courts for the examination of witnesses, pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975, and the Taking of Evidence Regulation.

Examinations of witnesses arranged and carried out privately are not affected, but the COVID-19 restrictions are likely to prevent them from proceeding.

Urgent applications under the Evidence (Proceedings in Other Jurisdictions) Act 1975, where English solicitors are instructed, can be processed by submitting them to the Foreign Process Section, and hearings of, or relating to, such applications can be listed and heard in the usual way.

It may be possible to process urgent applications for orders for Letters of Request to be sent to foreign courts (under the Taking of Evidence Regulation, the Hague Evidence Convention or any other bi-lateral treaty), but they are unlikely to be dealt with by the requested court. The advice is to wait for current restrictions to be lifted, unless there is real urgency.

Please do contact us in relation to these issues if you have a queries.

Can you still enforce UK judgements in other jurisdictions and vice versa?

The Foreign Process Section is not able to register foreign judgements at the moment for enforcement in the UK.

Enforcement of UK judgements is difficult during the pandemic because governments worldwide (including the UK) have introduced temporary measures to safeguard their respective economies, businesses and individuals.

However, we can access our international network of lawyers to determine on a case-by-case basis the options available to you. These may be steps to ensure swift action as soon as enforcement action can resume or indeed steps that can be taken in the interim to secure your debts.

Following the British Prime Minister’s announcement on Monday 23rd March 2020, visits by all enforcement agents are temporarily suspended.

However, enforcement orders which do not involve bailiffs or High Court enforcement officers are still available.

Furthermore, if bailiffs or High Court enforcement officers are required, steps can still be taken to make applications to the courts to obtain writs of control. On receipt of writs back from court, a combination of telephone, email and SMS communications to encourage payment remotely can still be used. Visits to premises can then take place (if required) once the restrictions have been lifted.

What effect has the pandemic had on winding-up proceedings in England and Wales?

The UK government will temporarily ban the use of statutory demands (made between March 1, 2020 and June 30, 2020) and will prohibit winding up petitions from being presented or winding up orders being made (from April 27, 2020 to June 30, 2020 – although this may be extended) where a company cannot pay for COVID-19 reasons. While primarily aimed at landlords to prevent aggressive rent collection, the measures represent a blanket ban on all winding up petitions and orders where non-payment of a debt is because of COVID-19 reasons. The new legislation to implement this measure is not yet in force but will be retrospective. Parties are therefore proceeding as though it is in force. We anticipate parliament will debate the Bill from 3 June 2020. It is expected to be implemented in late June, although this is not yet certain.

The Team

If you require any help relating to the recovery of money or assets from a debtor based in the UK or where there are insolvency or restructuring issues affect a member of a group of companies, a company or creditor of a company based in the UK, then please do contact any member of our team below.