Litigating construction disputes in a post pandemic world

With the number of construction disputes predicted to rise as COVID and its effects manifest, the number of cases coming before the Business and Property Courts (B&PCs) will presumably also increase. In his recent speech to the Civil Justice Conference on the future shape of business and litigation after the pandemic, Sir Julian Flaux - Chancellor of the High Court and responsible for day to day operation of the B&PCs - offers insights.

In terms of some of the key points and comments of interest:

• Trials - Trials have continued in the B&PCs during lockdown with evidence, including witness testimony, frequently given remotely. However, what will be the new normal once evidence via video link is no longer a necessity? Sir Julian predicts that once restrictions are lifted, there will continue to be pressure from some parties for evidence to be adduced remotely. Whether the court will agree applications from the parties to such effect will be a matter of judicial discretion, but issues such as the category of case being tried, the importance and nature of the issue (whether interim or final), and whether the case involves a litigant in person may well be factors to be weighed up when considering any such application.
• Authority of the Court – is there a risk that long term use of remote hearings may lead to an adverse dilution of the formalities of the court? Sir Julian cites interruptions - ranging from barking dogs to poor WiFi connection – as an inevitable consequence of such new ways of conducting cases. However, Sir Julian warns of creeping informality and provides examples of Counsel taking instructions via WhatsApp, parties speaking more freely among themselves, and litigants in person behaving less appropriately, all of which can be distracting for the court. Sir Julian warns of the need to “guard against the unintended consequences of informality”, highlighting that formality in court proceedings is important and “serves to demonstrate the seriousness of the decisions being taken”. In terms of action that may be taken to maintain formality whilst also embracing the flexibility remote working offers, Sir Julian points to the importance of robust and efficient technology, which will enable judges to access multiple electronic documents, whilst also hearing evidence via video and audio links.
• Increased use of regional centres – Sir Julian observes that the ability to conduct hearing remotely has enabled specialists judges to ‘sit’ outside of London more easily. Sir Julian expects that, moving forward, this will promote a move away from London-centric business and property litigation, which has been cited as key to civil justice reform. Similarly, in the future, Sir Julian expects that remote hearings will enable London-based judges to hear cases issued in the regional courts, thereby enabling a consistent level of service whilst also allowing parties to have their dispute heard in a local court.

The B&PCs have long been held as a global centre of excellence for the resolution of construction disputes and such courts hear some of the most complex, technical and high-profile claims. The comments of Sir Julian Flaux demonstrate the BC&Ps willingness to embrace opportunities as to how cases are conducted in the future, which, it is anticipated, will only cement the reputation of the courts.

“My own view is that we must seize the good things that have come out of this terrible crisis – the efficiencies and the things that we have learnt to do better – and jettison the bad, including the erosion that working from home has caused to our perception of the work/life balance. There is no doubt that we have been offered an opportunity to do things differently, and we should grasp that firmly.” Sir Julian Flaux

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