Post-Covid Litigation in England and Wales and the London Commercial Courts

The Covid-19 pandemic has affected two significant changes to the English and Welsh courts, and particularly the London Commercial Courts. It has also seen a gap emerge with some of their competitors.

The first and most obvious change was that it turbo-charged the courts’ embrace of digital technology. Digitisation of the courts had until March 2020 been a slow, deliberate process, focused mostly on the introduction of e-filing and management systems. The pandemic could have had a severe adverse impact on the courts’ ability to conduct hearings, but did not do so due to the adoption of remote technology (Zoom, Teams, YouTube, as well as the courts’ own platform). The long-term effect of this is that the English and Welsh courts, and the London Commercial Courts are an exemplar here, will be amongst the forefront worldwide of courts utilising digital technology for hearings and benefiting from the greater flexibility it provides to the court and parties. Where the London Commercial Courts are concerned, we are already seeing the effect of this. Hearings scheduled to last less than half a day are routinely listed for remote hearing. All applications hearings held on Fridays are by default remote hearings.^[1] Ease of access, flexibility, and reduced litigation costs flowing from this are particularly likely to increase its competitiveness throughout the 2020s, and access to justice more broadly in England and Wales. 

The second significant change focuses specifically on the London Commercial Courts. In 2015, a new form of procedure was introduced, the Financial Markets Test Case procedure, into the rules of court; specially the Financial List. It enables parties, who are not yet in a dispute, to apply to the court for an authoritative judgment on an issue of importance to the financial market, which is broadly defined.^[2] Until March 2020, this novel and unique procedure had not been used. The significant impact the pandemic had on the insurance industry changed that. Test proceedings seeking an authoritative decision on issues relating to business interpretation insurance were brought under this procedure.^[3] Having seen its utility, it is likely that parties active in the financial markets will increasingly use this mechanism as a cost-effective way to clarify their obligations, prior to any dispute arising, in order to facilitate market efficiency.

The third issue post-Covid does not relate to the pandemic. Continued, increasing, competition between commercial courts was noted in last year’s report. While the Commercial Court, itself, ensured that it had no Covid-related backlog of work, while improving its ability to deal with cases efficiently through promoting the use of the Circuit Commercial Court for suitable cases,^[4] it is not yet in a position to benefit from the introduction of the Singapore Mediation Convention.^[5] Until the UK becomes a signatory to this Convention, the aim of which is to promote international commercial mediation in the way that the New York Convention promotes and supports international arbitration, the London Commercial Courts are likely to be at a disadvantage when compared to its competitors, such as the Singapore International Commercial Court, where this nascent market is concerned. If the London Commercial Courts are to continue to compete effectively in the future, the UK Government ought to give serious consideration to the UK becoming a signatory to the Convention and to enacting legislation to support its application in the UK analogous to the Arbitration Act 1996.

Overall, the pandemic has seen the courts, and particularly the London Commercial Courts, put in place, and utilise effectively, remote technology earlier than they would otherwise have done. It has resulted in the first use of an innovative form of process beneficial to the financial markets. But, it has also seen a gap arise between the London Commercial Courts and their competitors where mediation is concerned. If the UK takes steps to bridge that gap, the courts are well-placed to maintain and build on the London Commercial Courts’ position as a pre-eminent centre for international dispute resolution.

This contribution is taken from Commercial Courts Report 2022, produced by Portland’s specialist Litigation and Disputes practice. Sign up to download the report here.