The transmission of the SARS-CoV-2 virus, and the Covid-19 illness it leaves in its wake, has led to government advice, now reinforced by legislation, that has had a greater impact on our way of life than most of us have ever before experienced.
We property professionals have had to adjust our working practices as a result. In our chambers, we have devised fixes to enable us to carry on business almost as usual. Here are some tips drawn from our own experience. These distil the guidance, ‘Working through the Covid-19 Pandemic’, which may be found on the Falcon Chambers website here.
1. Ensure everyone knows how to contact you
Guy Fetherstonhaugh QC: Gone are the days when the easiest way of finding someone at work was to drop in. The change has been hard to adjust to. We are social animals, and we must now substitute that interaction with social media. The result has been that the available frequencies are becoming jammed with messages and videos (some of them very funny, admittedly). Among all this chaff, serious work communications can lose out. So, tip one is to ensure that your comms cover all the options, and that you work out in advance what is the fall-back plan if you cannot get through on email.
2. Don’t forget your wellbeing
Julia Petrenko: Tip two is the corollary of tip one. Although, absent this pandemic, we might all gradually have become used to a more solitary working pattern, the changes wrought in response to this outbreak have been sudden, requiring a swift adaptation of relationships and means of communication. It is easy to feel out of sorts in this sudden and not very brave new world. The answer is to communicate. Send those cat videos; take part in quizzes (we had a cracking quiz recently with Elton John song titles by emoji); have a Zoom teatime. Look out for each other: it’s good for others, and good for you too.
3. Improve your technical skills
Fern Schofield: We all face getting to grips with a plethora of technological communication platforms. There are also new tasks to tackle, such as preparing and navigating PDF bundles. Barristers have come together to share best practice, with specialist associations such as the Chancery Bar Association leading the field. Whatever platform you are using, two tips always apply: test it out ahead of time to ensure you are familiar; and make sure you have an alternative method of communication, such as a phone number or an email address, just in case.
4. Get up to speed with the new court protocols
Gary Cowen QC: It shouldn’t come as a huge surprise to know that the various courts and tribunals have issued their own individual and often conflicting guidance rules on how they intend to continue to operate during the pandemic. Given the flurry of advice from the judiciary, as well as from professional associations, there is a huge amount of information to take on board. The various practice directions issued have been collated on the Falcon Chambers website, and time could usefully be spent in getting up to speed with them. Our experience thus far, however, is that the day-to-day practice may not live up to the formal requirements, especially where technology is added to the mix. Be prepared to adapt at short notice.
5. Keep up to date
Jonathan Karas QC and Tamsin Cox: Government advice and legal restrictions have changed as the situation has developed. Media reports have sometimes been confusing. There is no substitute for keeping up with the legislation first-hand. The Coronavirus Act 2020 can be found here. The relevant statutory instruments are here and government advice is here. While the rule of law is fundamental, the police and public opinion may take a dim view of those who try to carve out exceptions for themselves, such as Sports Direct boss Mike Ashley, even if they have a strict legal point – so don’t be a barrack-room lawyer.
6. Manage expectations
Toby Boncey: Technical and practical difficulties will be encountered as a result of the new methods of working. We should not expect our clients or courts to be as responsive as they might ordinarily be, or for things to be ‘business as usual’. Extra time may need to be factored into plans or directions to account for difficulties and delays. We should be sympathetic to unexpected practical problems faced by those we work with, and those we act against. As well as managing our own expectations and adapting our working practices, we should explain to clients and the courts any impediments to timely compliance with instructions, deadlines or directions, and ensure proactively that appropriate arrangements can be put in place. We should also be aware, and make our clients aware, that additional costs may be incurred as a result of abortive remote hearings, or adjournments at short notice.
7. Be resourceful and forward-thinking
Caroline Shea QC: For those with listed hearings, it is crucial at the earliest possible stage to address whether to proceed remotely or seek adjournment. Considerations: the numbers of participants that will have to attend remotely; whether all participants can guarantee sufficiently robust communications; in a witness action whether witness probity can be ensured and witnesses can handle e-bundles without assistance on hand. Aim to agree the direction of travel with the other side – lead the way and your strategy is likely to prevail. Let the court know what you propose and why before it starts to exercise its own powers under the new protocols.
8. Look after your recruits
Adam Rosenthal QC: It is important to continue to nurture recruits, who have little control over their current predicament, and for whom the uncertainty must be deeply worrying. In our case, the future of chambers is shaped by the recruitment of junior tenants each year, and it is of the utmost importance that the rigorous training and assessment of our pupils is maintained during this period. We have thus put in place a team of supervisors for each pupil to ensure that they have a sufficient flow of work and to ease the burden on individual members who would otherwise supervise alone. It is just as important that pupils are in regular contact with members of chambers via video-conferencing and telephone, and via the junior WhatsApp group we have put in place.
9. Think ADR
Catherine Taskis: With the majority of the courts and tribunals now requiring hearings via video-conferencing or by way of written submissions, litigation has taken a step closer to other forms of alternative dispute resolution (ADR), such as arbitration and independent expert determination, and these changes have also prompted a fresh look at mediation. We have many members of chambers who are ready to act as arbitrators, independent experts and mediators, and we have, in the shape of Falcon Chambers Arbitration, a mechanism that is both suitable for ADR and readily adaptable to remote engagement online.
10. Share and share alike
Oliver Radley-Gardner and Phil Sissons: As we get used to the new world, experiences can usefully be shared to make it work. Sharing experiences of telephone or Skype hearings (which is already happening on LinkedIn and other platforms) means that hearings are more likely to run smoothly. There are practical problems which we have never had to grapple with before. How does one virtually hand up an authority to the bench? How does one swear a witness of fact? How does one pay an issue fee? Information such as court opening times (or lack thereof), procedural changes to meet present circumstances and the different practices of the various courts and tribunals can be hard to find. This is a steep learning curve for all parties involved. The use of corporate websites or individual LinkedIn profiles to disseminate this information is invaluable.