The global public health crisis created by Covid-19 has also brought with it wide-ranging and complex legal problems for large numbers of people. Members of Crown Office Chambers have sought to produce and collate helpful articles and resources that might assist those seeking information on key legal issues arising from the present pandemic. We will endeavour to update this web page on a regular basis with useful information on key legal and practical.
In this section Members of Chambers have posted various articles on legal issues that have arisen and provide guidance on how to approach them. This section will be updated from time to time.
Supreme Court hands down its judgment in COVID-19 test case
The Supreme Court has handed down Judgment in the landmark test case brought by the Financial Conduct Authority to establish whether a sample of business interruption policies which included extensions to cover that were not dependent on property damage would respond to losses sustained in the wake of the COVID-19 pandemic.
Andrew Rigney QC and Caroline McColgan were instructed by Mark Wing of Clyde & Co LLP on behalf of Zurich Insurance, and acted for Zurich at all stages of the case.
A safer conversation: reasonable practicability
Simon Antrobus QC has, together with a leading safety consultant, Mike Webster, answered a series of topical Covid-related questions for the September 2020 edition of the British Safety Council Magazine.
The European Commission’s Annual Report on its Rapid Alert System for Dangerous Products
Lara Knight looks at the European Commission’s Annual Report on its Rapid Alert System for Dangerous Products. Although not covered in the 2019 report, it is interesting to note that a number of new alerts have been registered since the start of the coronavirus outbreak, including on face masks, coveralls, hand disinfectants and UV lamps (“sanitising wands”).
The Corporate Insolvency and Governance Act 2020 and its Impact on the Construction Industry
Daniel Shaw discusses the new Act, which sets out the most comprehensive changes to UK insolvency law in a generation, including temporary measures responding to the turmoil caused by the COVID-19 pandemic. Daniel considers three key aspects of the new Act likely to impact the construction industry heavily in their own right, before considering how these aspects might affect adjudication in particular.
The calm before the storm? Covid-19 and enforcement notices
John Cooper QC and Mike Atkins discuss the Health and Safety Executive’s approach, key aspects of the law on enforcement
notices, enforcement notices in the context of Covid-19 and responding to an enforcement notice.
Should face coverings be required at work?
Simon Antrobus QC, together with David Young and Erin Shoesmith of Addleshaw Goddard LLP consider the issue of the use of face coverings at work, in light of changing Government Policy as to their usage by the public, in an article published in Personnel Today.
Some practical advice for applying the Sentencing Guideline for Health and Safety offences in a “social distancing” Crown Court
Malcolm Galloway sets out his thoughts and practical advice arising from the experience covering both the effect of the pandemic in the sentencing process and the practical difficulties of appearing in a ‘social distancing court’. This was the first effective health and safety sentence undertaken by counsel from Crown Office Chambers since the lockdown in March 2020.
Covid-19 and the Construction Industry: Emden Editor’s Letter 26 May 2020
Isabel Hitching QC, as joint editor of Emden on Construction, considers issues arising in relation to COVID-19 and the Construction Industry.
Ivor Collett successfully defends LPA Receivers in professional negligence trial
See the post-Covid economic future and weep (or not). Whether we have a dead cat bounce or a V-shaped recovery, it looks like we will be seeing a recession later this year. Disgruntled borrowers driven to insolvency will be looking carefully at how their affairs have been managed by receivers appointed by lenders to take control and sell off their assets to repay debts and receivers will be looking over their shoulders to see if they could be facing a claim. Ivor Collett summarises this recent judgment in a claim against LPA Receivers showing the limits on their liabilities.
“COVID Secure” – The New Dawn of Regulatory Enforcement
John Cooper QC and Simon Antrobus QC, in their second article on the post lockdown return to work, explore the issues presented by enforcement of the new social distancing guidance and the difficulty faced by employers as to how to reassure their workforce and regulators as to the safety of the workplace.
COVID-19 not be used as an excuse for late applications
Farrah Mauladad appeared for the successful First Defendant in Ludlow v (1) Buckinghamshire Healthcare NHS Trust (2) BMI Healthcare Ltd (6 May, 2020). The unopposed application to adjourn and relist a clinical negligence trial was granted by Jay J in light of Covid-19. However, the claimant was not permitted to use that intervening period to her advantage to instruct a new care expert.
Keeping an eye on COVID-19: the morning after the night before
Harry Vann and Katie Sage look ahead to the implications of the pandemic for health surveillance duties in industry once the lockdown is lifted.
Webinar and presentation available here.
Recent Developments in Interpretation of Contracts: a welcome message of certainty in a time of change
Isabel Hitching QC looks at how the courts are interpreting contracts. Given Brexit and now COVID-19, clients are looking at how they can adapt to changes in the commercial, political and legal context. Approaches to working and the nature of the obligations parties assume may evolve. However one matter that is likely to stay a constant is that parties involved in commercial and construction ventures will want to set out their respective obligations in a contract at the outset of any project. They will also want to have confidence as to how their contract will be read afterwards by those seeking to perform it or to resolve disputes in relation to it.
New Guidance Published on Responsible Contractual Behaviour
Richard Sage discusses two new sets of guidance published by the UK Government on Thursday 7 May, concerning those who are closely related to the construction industry.
Covid-19: Business Interruption insurance, an FCA class action, and the long-tail risks to insurance brokers
Daniel Shapiro QC, Elizabeth Boon, James Sharpe and Frederick Simpson consider (i) the operation of Business Interruption (BI) insurance, (ii) the FCA’s proposed class action and (iii) the risks to insurance brokers from disappointed claimants. BI cover is ill-understood and complex. It is not typically intended to cover disruption from Covid-19 yet insureds often believe it should provide such cover. In the short term the FCA is attempting to take a grip of resolving the issue of what cover there is under BI policies. In the longer term, these circumstances could give rise to claims (probably with little merit) against insurance brokers.
What are the Health and Safety Responsibilities of Employers for COVID-19?
John Cooper QC and Simon Antrobus QC discuss the likely phased return to work and education after lockdown. In particular they review the issue of social distancing within the workplace that is going to be at the forefront for employers and their employees. They discuss how HSE will play a central role in relation to all of these matters. They cover the joint statement was issued by the TUC, the CBI and the HSE and the Health and Safety at Work Act 1974.
Covid-19 package holiday cancellations: a clear contractual entitlement to a 14 day refund ignored by most tour operators
Daniel Shapiro QC considers the obligation on package holiday operators to provide a refund within 14 days of cancellation, and tour operators’ suggestions to clients to claim on travel insurance.
Desperate times call for desperate measures: Public procurement in times of crisis
On 18 March 2020, the Government issued a Procurement Policy Note – ‘Responding to Covid 19’ (PPN 01/20) containing general advice for contracting authorities who may need to procure goods, services and works with extreme urgency. David Sears QC discusses whether and to what extent the Government (or Public Health England) has followed its own advice remains to be seen.
Adjudication not subject to lockdown
David Sears QC discusses the recent case of Millchris Developments Ltd v. Waters, Jefford J refused to grant an injunction restraining an adjudication on an application by the Respondent contractor who argued that to allow the adjudication to continue would result in a breach of natural justice because it did not have the time or means to properly prepare its case because of the impact of COVID-19.
Remote trial or adjournment?
Daniel Shapiro QC and Caroline McColgan identify particular considerations the Court may consider in deciding to conduct a trial remotely or to adjourn the trial. They analyse the factors in two differing Commercial Court and TCC decisions, which may be applicable to the Business and Property Courts more generally.
Hindsight is 20/20: Assessment of damages in light of Covid-19
Michael Harper explains how the assessment of damages can in many cases take account of events subsequent to breach and what is known by the date of trial. This is despite what has been traditionally referred to as a general rule that damages are assessed as at the date of breach. Hindsight, proverbially said to be 20/20, will therefore be much required in 2020. The quantification of some claims may be radically affected by the effects of Covid-19.
Covid-19: issues for property and business interruption insurers
In this article, Elizabeth Boon looks at some of the issues that might arise for property and business interruption insurers in relation to Covid-19. In particular, whether Covid-19 can amount to property damage for the purpose of business interruption insurance cover. This article also provides guidance in relation to potential claims under property and business interruption policies resulting from theft or malicious damage to property.
Adjudication during the Covid-19 restrictions: an option for disputes during lockdown?
Dan Shaw considers how to deal with the question of whether it is essential to the administration of justice that a live, in-person hearing, is held. He considers this issue in the particular context of construction adjudication and the judgment in Gil v London Borough of Camden  EWHC 735 (QB).
Crown Office Chambers has moved online for the duration of the Covid-19 outbreak, however, Members of Chambers are continuing to work as normal, phone and email communications are open and we have full phone and video virtual conferencing facilities. We continue to provide outstanding legal advice and expertise and serve and assist our clients in current and new matters. In order to facilitate access to our Members, while protecting our clients, Members and staff:
- Please provide all instructions and papers electronically
- If hard copy papers must be sent, then please direct these to the barristers home address – please contact our clerks who will assist
- Please do not send post or DX items to the main chambers building as we cannot receive them whilst the clerks’ room is closed.
The team at Crown Office Chambers recognise that learning resources remain as important as ever. Therefore, if you or your team would welcome a discussion about possible webinars etc., either in relation to issues arising from Covid-19 or otherwise, please do not hesitate to contact a member of the clerking team.
In this section we have collected together some of the useful guidance issued by the Courts and Government that are relevant to the areas of law in which Crown Office Chambers practises, and in particular dispute resolution.
Civil Litigation Resources
Updates to the CPR in response to Covid-19:
3 New Practice Directions have been issued and one existing Practice Direction has been amended as part of the effort to maintain and manage access to the Courts during the Covid-19 pandemic. They can be accessed at the below link. In summary they provide for / cover the following ground:
New Practice Direction 51Y
This makes provision to enable greater use of remote video and audio hearings during the currency of the pandemic. In particular it provides, that where it is not practicable for a hearing to be held in public, the Court can Order that it be held in private; it further provides that such hearings should where practicable be recorded and that recording be made available. Practice Direction 51ZA has since clarified that no formal application is needed to access the recording, merely a “request” of the Court.
New Practice Direction 51Z
Practice Direction 51Z stays all possession proceedings under CPR Part 55, except for claims for injunctive relief, for 90 days.
This Practice Direction has since been updated to exclude claims against trespassers, certain interim possession orders. It also now permits case management direction to be applied for, and it has been clarified that claims for possession may still be issued.
New Practice Direction 51ZA
Practice Direction 51ZA deals principally with extensions of time. Rule 3.8 has been temporarily amended so that extensions of time up to 56 (rather than 28) days can be agreed without Court involvement. Further, longer extensions can be applied for and will be primarily considered on the papers.
The Courts have now also expressly been required to take into account the impact of the pandemic when considering applications for extensions of time, adjournments, and relief from sanctions.
Practice Direction 51R – updated
A number of amendments have been made to the Online Civil Money Claims Pilot, generally to streamline how such claims are managed. These changes are intended to remain in force after the pandemic is over.
HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak
At the below link, Court users will find regular updates on the extent to which the Civil Courts are operating. For example, information is provided as to hours of service, whether Courts are able to answer calls and whether Court buildings are open.
HMCTS guide on how to join telephone and video hearings during coronavirus (COVID-19) outbreak
The guide at the below link explains what to expect from a telephone / video hearing, and how to act during one, as well as basic information as to how to prepare for one and join one.
HMCTS telephone and video hearings during coronavirus outbreak
Information about how HMCTS will use telephone and video technology during the coronavirus (COVID-19) outbreak can be found at the following link. The resources provided are many and varied. They include general guidance on the decision to use technology to facilitate the hearing. Certain particularly important or useful sub-items are highlighted below.
Remote hearings Protocol – 26 March 2020
This summarises certain key points from the CPR, including the new PDs and provides guidance as to how remote hearings should be organised, prepared for and conducted.
Guidance for judges
Guidance from the Lord Chief Justice, Master of the Rolls and President of the Family Division to Circuit and District Judges sitting in Civil and Family. This generally provides an insight into how the Judiciary have found remote working and remote hearings so far, and the sorts of considerations that should be taken into account when deciding whether or not to conduct a hearing remotely.
The Queen’s Bench Division has issued various bulletins as follows:
Bulletin 6 – Covers Possession claims against trespassers in particular – see here
Bulletin 5 – Covers the service of process from and taking of evidence for foreign Courts, and the registration of foreign judgments – see here
Bulletin 4 – Covers the work of the CFO – see here
Bulletin 3 – Relates to the publication of PD 51ZA, and the ability of parties to sign Court documents electronically – see here
Bulletin 2 – Explains that certain departments are completely closed, and covers hearings before QB Masters as well as communications relating to hearings and documents for hearings – see here
Criminal and Regulatory Litigation Resources
Government Advice for Workplace Safety coming out of Lockdown
The overarching Governmental advice on Covid-19 (“Working Safely During Coronavirus”) is now available, currently broken down amongst the following different sectors: Construction/outdoor work; factories, plants and warehouses; labs and research facilities; offices and contact centres; other people’s homes; restaurants offering takeaway/delivery; shops and branches and vehicles. The guidance is far reaching and complex, requiring those employing more than 50 people to publish their risk assessment for dealing with Covid-19 on their website. This is not legislation but the guidance will be effectively enforced by the HSE under their existing powers, albeit this may prove to be controversial in due course (see the article by Simon Antrobus QC and John Cooper QC “What are the Health and Safety Responsibilities of Employers for Covid-19?” [LINK])
Construction Leadership Council advice for the Construction Industry
Specific industry guidance for construction work that is forming the basis of most larger construction companies’ internal procedures. The Government guidance refers to this as being the detailed industry guidance to be followed and it is featuring in various company videos from such businesses as Morrisroe. It includes advice as to observing the 2m rule, or alternatively limiting contact within that proximity to no more than 15 minutes.
Build UK Statement: Issues for the Construction Industry
Some interesting issues and feedback on the guidance above from various construction companies that are members of Build UK. Of most relevance is concern amongst those businesses as to what they should do in terms of the provision of PPE, most particularly respiratory protection in the form of face masks.
Government Advice for Food Retailers and Food Processing
Governmental advice for supermarkets and those businesses involved in food processing. It builds upon ordinary hygiene procedures that are commonly used within the industry such as HACCP. It includes the provision of social distancing measures such as signage to ensure customers keep 2m apart and also the protection of staff behind Perspex barriers.
Agriculture and Horticulture Development Board Guidance for Farming
The first set of guidance for the farming industry on maintaining social distancing, including identifying some activities where it is not feasible to do so.
Waste Industry Safety and Health (WISH) Advice for Waste Recycling Industry
Specific industry guidance for waste recycling businesses about how to maintain social distancing, particularly when working inside, on picking and sorting lines.