Covid-19: The Good, The Bad and The Changes

Last month, I discussed the impact the crisis had on law firms and the lessons the legal sector has been taught. We found many discussing the shift to remote working, how this may change the way in which law firms operate in the future, how it has impacted the courts and the ways in which hearings will proceed when social distancing and adhering to lockdown rules is of utmost importance.

From an uprise in class actions to appreciating the power of the governments across the globe, many lessons have been learnt in the past few months. For this article, I decided to delve a little deeper and explore which sectors in the legal profession have been hit the hardest, and, more importantly, when the world is full of sad, bad and terrifying news, I thought it was important to spread a little positivity. Below, I speak to some experts that have taken something good from the current crisis.

As an employment lawyer working only with employers, our job in the good times is to help our clients thrive but when times are tough it is to help them survive, really

Employment Law

Lawyers in the employment sector have had their work cut out for them. From unexpected redundancies, to compiling an up-to-date working from home policy, to handling furloughing all in the comfort of their home, employment lawyers have undoubtedly been very busy. Some, in fact, saw their workload triple.

Speaking to James Tamm, Director of Legal Services at Ellis Whittam, he mentions how he saw their workload increase three-fold initially. “Whilst that was incredibly hard to cope with and doesn’t sound like a positive, it did demonstrate to us that our clients knew we were here to help them in a time of real need”, he says.

The pandemic allowed him to reconnect with some clients who have not been regular users of their services, allowing them to build a number of new relationships. “It gave us a chance to shine and cement the value of the service even with our more established clients which will hopefully hold us in good stead moving forward.”

New clients and a stronger outreach are the main positive drawn out from this situation. “As an employment lawyer working only with employers, our job in the good times is to help our clients thrive but when times are tough it is to help them survive, really”, shares James.

He expands on how a pleasing aspect and outcome was the Coronavirus Job Retention Scheme. ”The government acted quickly and decisively to help save jobs. The detail of the scheme has been something of a nightmare, to be honest, but its very existence has meant that we have been able to advise our clients on how to make use of it, rather than enforcing mass redundancies and that has to be a positive.”

Getting in touch with Andrew Rayment, Employment Partner at Walker Morris, he too discusses the potential positive impact of COVID-19 on employment strategies and how they will likely be adapted in line with evolving commercial and workforce expectations.

“While businesses will now be considering what their “exit strategy” is in a post-furlough world, there are indeed positives to be taken from the current situation”, he reveals.

This is the most significant opportunity we’ve had to square the circle and one that could be far more effective than the stick-driven reporting directives in play at present

As businesses across every industry have had to adapt in significant ways – and whilst there are likely hard decisions to be made in the near future, there is a great opportunity to consider which aspects of new ways of working we have all adopted that we want to (and should) take forward.

Many businesses had few or no staff working remotely before the pandemic. “Of course, for some, such as manufacturing, it wasn’t possible, but for many, it was due to a preconceived negative view or simple reluctance to tackle the challenges and adoption of technology to enable it.

“One of the most interesting and positive things to come out of the pandemic will be the sociological impact we see. There has long been a need for greater diversity in business and, in particular, women on boards. Given that employers can no longer argue about the negative impact of flexible or remote working if roles are successfully fulfilled during the crisis, this should open up more opportunity for senior and serious career progression for individuals, but especially women, juggling work and family commitments”, explains Andrew.

Considering the options for future recruitment, in which those who can only work set hours on set days is no longer required, employers will also be able to recruit from further afield, hopefully leading to a more diverse workforce.

“This is the most significant opportunity we’ve had to square the circle and one that could be far more effective than the stick-driven reporting directives in play at present”, explains Andrew.

Trusts and Wills

There are strict rules, for example, about how wills must be drawn up. And if those rules aren’t followed – such as regulations about signatures having to be witnessed – then the Will can be declared invalid and, in those instances, people will have wasted their money

Covid-19 has also seen an upsurge in people making Wills, wanting to make sure their wishes are down on paper for their family and friends.

With people wanting to put their affairs in order quickly, expert solicitors have adapted the way they work, so they can comply with Covid-19 social distancing regulations and yet still provide a full professional and personal service which gives customers peace of mind.

Zoe Calway, Director of Cartmell Shepherd Solicitors mentioned how solicitors all over the country have adapted to ensure they can give clients the best, most professional, personal service possible – while at the same time making sure they comply with all the government regulations.

“We have been witnessing signatures by standing the required distance away from people’s homes and watching as they sign the Will in the window. Then they leave it in an envelope in a safe place for us. We have had people leave them on a table in the garden, by plant pots, anywhere where it is safe.

“As professional solicitors, we are always willing to go the extra mile for people to make sure people are getting exactly what they want. It’s all part of the service.”

Zoe warns of the pitfalls of people thinking that their solicitor might not be able to help them this way and, therefore, be attracted by making their Wills with a purely online service.

“There are strict rules, for example, about how wills must be drawn up. And if those rules aren’t followed – such as regulations about signatures having to be witnessed – then the Will can be declared invalid and, in those instances, people will have wasted their money.”

Without proper witnessing of signatures, it could also be claimed that the person making the Will was coerced into the wishes they made and was put under undue influence.

“There are also other things to consider as well which is why it is good to talk to a solicitor”, said Zoe. “You need to think about who has power of attorney if you are incapacitated. If you are in hospital for a period of time and incapable of making your own decisions who do you want to have the authority to make decisions on your behalf?

“There’s also inheritance tax to consider. What assets do you have? Whose name are they in? Are you aware of tax liabilities of doing things in different ways? Who are you appointing as your executors?”

There are lots of questions and choices for people to consider and many solicitors are worried that an online Wills service is cheaper, they may not offer the same level of service that other solicitors would, and that can lead to problems further down the line.

In my experience, remote hearings are longer and more frustrating for the lay client

Family law

A survey undertaken by the Bar Council, Paula Rhone-Adrien, Barrister at Lamb Building Chambers tells us, identified three major concerns for Chambers: the interruption to Court work; practitioners inability to generate an income; and a drying up of cash to meet direct and indirect costs. Most worrying was of those who responded, 55% of thought they would not see out the next six months, whilst 81% didn’t think they would survive 12.

“Within the first few days of lockdown, my diary emptied as solicitors firms either closed or retreated to skeleton staff. The messages from the Government were mixed: the Court system is open, but those attempting to access it were met by an administration already crumbling under the weight of Government cuts.”

“In my experience, remote hearings are longer and more frustrating for the lay client. This could be because, for example, they are unable to engage with me directly right at the crucial moment, they are nervous about using the technology, and they feel that the Judge is even more remote than before. Practitioners also understand that less remote hearings are being listed in an attempt to limit screen fatigue.

“In my opinion, lessons are being learned to ensure access to justice remains real and workable. However, I suspect the reality of lockdown will only truly come to light over the next 12 months”, Paula explains.

Another big impact Paula has seen in family law specifically, has been on domestic abuse cases. “As a family practitioner, it is shocking to read that only 5% of vulnerable children are actually attending school and that the average of two women killed per week by perpetrators of domestic abuse has increased to five.

In fact, there have been 4,000 domestic abuse arrests in London in just six weeks. Anna-Laura Lock, Senior Associate at Winckworth Sherwood, mentioned that “The police, government and domestic abuse campaigners have identified that the restrictions that have been put in place to protect our health and ease pressure on the NHS as a result of the Covid-19 pandemic have made domestic abuse victims more vulnerable and effectively captive in their own homes.”

The bleak reality is that this is only the very start of the issue, not only in terms of the stage of the pandemic but also the psychological and economic fallout that will follow

Estimated figures from March 2019 suggest that this is likely to affect 1.6 million women and 786,000 men in England and Wales. “Reports worldwide, especially from countries which have been in lockdown for longer periods than the UK, have documented a dramatic rise in reports to police and requests for help to domestic abuse helplines. In the UK, Relate recorded that 30% of its calls in the week up to 18 March (the week in which social distancing measures were announced, but before the current lockdown came into play) mentioned coronavirus. With whole families confined to their homes, there has also been a huge surge in children and young people witnessing domestic abuse between their parents.”

In France, hotel rooms have been made available for victims and help centres set up in 20 supermarkets around the country, explains Anna-Laura. In Spain, potential victims have been told to use a safe word when visiting a pharmacy. To minimise violence against women and children, Greenland and South Africa have introduced bans on the sale of alcohol.

“In circumstances where police resources were already stretched prior to the lockdown, and the virus and the lockdown measures have not yet reached their peak, the availability of police to respond to an urgent call-out may also become an issue.

“The bleak reality is that this is only the very start of the issue, not only in terms of the stage of the pandemic but also the psychological and economic fallout that will follow”, concludes Anna-Laura.

The family law arena has changed and has seen some highs and lows, but not all is doom and gloom, however, as there are some positives we learn about – after speaking with Phillip Hunter, a Solicitor at Hawkins Family Law Firm – in a different arena of family law that might be harvested from this unforeseen experience.

To comply with social distancing orders, 85% of all court hearings in England & Wales are now being held remotely.

Following the lockdown, many practitioners and their clients observed a period of disruption and uncertainty and now report some adjustment and an unstable routine, explains Phillip. “Clients withheld instructions as they “watched and waited” and those that wished to progress to divorce proceedings or applications experienced greater delays than ever previously seen, as well as last-minute court hearing cancellations.”

But for many, the period of uncertainty has afforded an opportunity to reflect – whether this is on their approach to their relationship with an ex-partner, on whether lockdown has afforded them the opportunity to reflect on the viability of a relationship, or to reflect on whether alternative forms of dispute resolution (ADR) offer an improved solution.

“For practitioners, the lockdown has seen a move toward “working from home”, a new concept for some, offering more time with family, no commuting and a general improvement on their work-life balance, together with improved relationships with fellow practitioners as we all “muddle through” together, encouraging creative and dynamic working practices”, says Phillip.

The enforced move toward technology and remote hearings by the court has seen significant disruption, exacerbated by a reduction in judicial availability and support staff self-isolating.

The President of the Family Division continues to reflect on the lessons learned thus far, having himself recently adjourned a Final Hearing in a complex care case (Re: P [2020] EWFC 32) as he felt the remote hearing would not allow “effective participation for the parent”. Whilst this decision is purely case specific, the mood music from the Lord Chancellor, Robert Buckland QC, suggests the move toward embracing technology is here to stay.

Video hearings will cut costs, speed up the process. Many people have given up on using the UK court system because it takes too long

Addressing the Joint Committee on Human Rights on the government’s Covid-19 response, Buckland said, “Things that would have been scarce[ly] believable only two months ago are now being achieved by way of technology. The legislative alterations we made to allow more audio and video hearings were temporary in accordance with the act that was passed. It seems to me that there is now an appetite to make at least some of these changes permanent.”

To comply with social distancing orders, 85% of all court hearings in England & Wales are now being held remotely. 1,850 audio hearings took place on 6 April, up from just 100 on 19 March[1]. Hearings in which video technology was used increased from 150 to 1,100 in the same period. Only around 500 hearings are still being heard in person each day.

The increased efficiency of remote hearings would help clear the growing backlog in the UK courts. Data from the Family Court, for example, shows that the average time taken to complete a divorce with a financial settlement reached a record 34.4 weeks in the fourth quarter of 2019. This represents a jump of almost ten weeks from an average of 24.8 weeks in the same quarter just two years earlier.

Graham Coy, Family Partner at Wilsons, believes that the Ministry of Justice should look at allocating cases to be heard remotely at courts across the UK, to spread the burden move evenly. “Video hearings will cut costs, speed up the process. Many people have given up on using the UK court system because it takes too long.”

“For a lot of cases, in-person hearings simply aren’t necessary. Just in the last two weeks, there have been many complex family law cases which have been successfully resolved, despite parties and their legal teams being spread across the country.”

“Once the outbreak is over, the judicial system should continue to use this technology to expand court capacity. This would be a great way of bringing our court system into the 21^st century, and reversing the marked decline in efficiency that we have seen in recent years.”

The profession will look back on this time as it considers the welfare of those involved within it and consider this as a sea-change moment. We can do things better, sometimes we just need a reason to make us stop and think how

The continuing uncertainty and inevitable backlog associated with adjourned court hearings have led many within the upper echelons of the profession, including HHJ Hess and the Central Family Court, to advocate for those involved in family law disputes to turn their attention toward ADR. It is hoped that parties will once again consider arbitration, mediation by video conferencing and private FDRs to resolve their disputes in a timely and efficient fashion, says Phillip. “Particularly in regard to financial remedy work, the broader economic uncertainty and need for updating disclosure means that the take up for such alternatives may take time to manifest.

“Whilst the immediate future remains uncertain, clients and practitioners will continue to have to be deft, malleable and pragmatic in resolving their family law disputes. However, it is not all doom and gloom.

“The epidemic and its restrictions will provide opportunities for creative solutions and even the most ardent Luddite will be swept up in the momentum of the profession as it grapples with technology and embraces ADR. No doubt the profession will consider how ante-Diluvian our former, analogue approach had been, whilst reflecting on the importance of not throwing out the baby with the bathwater”, Phillip expands.

Technology is an improvement, not a complete answer. ADR is a further string to our bow that we should all be comfortable utilising, but it is not right in every case. “The profession will look back on this time as it considers the welfare of those involved within it and consider this as a sea-change moment. We can do things better, sometimes we just need a reason to make us stop and think how”, concludes Phillip.

The number of cyberattacks against organisations and individuals is significant and is also expected to increase.

Criminal Law

A much-discussed outcome from Covid-19 is the rise of new scams. During any unprecedented time, there are always some that may take advantage of the unfortunate circumstances. Since February 2020, in the UK, the National Fraud Intelligence Bureau has identified 21 reports of fraud where Coronavirus was mentioned, with victim losses totalling over £800,000 [2].

There have been reports about coronavirus-themed phishing emails attempting to trick people into opening malicious attachments or revealing sensitive personal and financial information. Some fraudsters would claim to be from research organisation’s affiliated with the Centres for Disease Control and Prevention (CDC) and the World Health Organisation (WHO) and will provide a link for victims to click on, where the website it transfers you to is often malicious.

Fraudsters are usually very quick to adapt well-known fraud schemes to capitalise on the anxieties and fears of victims throughout the crisis. An investigation supported by Europol revealed that a company in Singapore transferred €6.6 million to purchase alcohol gels and FFP3/2 masks, but they were never received[3]. Similar supply scams of sought-after products have also been reported by other Member States.

The number of cyberattacks against organisations and individuals is significant and is also expected to increase. With more of us working from home, cybercriminals are likely to seek to exploit an increasing number of attack vectors as a greater number of employers institute telework and allow connections to their organisations’ systems. An example reported by Europol is how the Czech Republic had reported a cyberattack on Brno University Hospital which forced the hospital to shut down its entire IT network, postpone urgent surgical interventions and re-route new acute patients to a nearby hospital.

Prosecutors are being asked to prioritise more serious cases and consider the impact of the Coronavirus pandemic when weighing up whether criminal charges are in the public interest, in order to help the justice system continue effectively in the face of current challenges

Commenting on this, Europol’s Executive Director Catherine De Bolle said: “This is unacceptable: such criminal activities during a public health crisis are particularly threatening and can carry real risks to human lives.  That is why it is relevant more than ever to reinforce the fight against crime. Europol and its law enforcement partners are working closely together to ensure the health and safety of all citizens”.

With counterfeit healthcare and sanitary products, including PPE and counterfeit pharmaceutical products, increasing during this time, as well as organised property crime – where scams involving the impersonation of representatives of public authorities for organised burglaries – criminal lawyers may witness a rise in cases.

But what about current cases, where justice is yet to be served? Prosecutors are being asked to prioritise more serious cases and consider the impact of the Coronavirus pandemic when weighing up whether criminal charges are in the public interest, in order to help the justice system continue effectively in the face of current challenges[4].

“Although lawyers must always assess whether a prosecution is in the public interest, new guidance issued asks for extra consideration of the impact of the pandemic when deciding the most proportionate response in every case”, reported CPS earlier this month.

Cases – both new and existing – ought to be reviewed on their own merits, and consider every available course of action including community resolution. This could mean criminals accepting a guilty plea to a different offence, but only if prosecutors are satisfied that a sentence which meets the seriousness of the offending could be passed.

Responding to this, Max Hill QC, Director of Public Prosecutions said, “We know very well the impact crime can have on people’s lives, so we want the public to be confident that – even in these very difficult circumstances – justice will be done.

“Our very function is to prosecute, but we cannot ignore the unprecedented challenge facing the criminal justice system.” Max expanded on how the focus is now on ensuring that the priority is dealing with the most dangerous offenders.  “In less serious cases”, he adds, “it is right that we consider all options available when weighing up the right course of action.

“This will only relate to a very small amount of cases and offences relating to Covid-19 will remain an immediate priority – anybody jeopardising the safety of the public will face the full force of the law.”

The CPS have stated that the pandemic has already had a significant impact on the Criminal Justice System, particularly on case progression. The majority of ongoing trials had to be stopped because of problems over the attendance of victims, witnesses, defendants, advocates and jurors. Many hearings have been adjourned to ensure compliance with government guidance on social- distancing. The crisis will have a long-term impact on the Criminal Justice System, particularly in relation to the expanding pipeline of cases waiting to be heard[5].

Nonetheless, no rest for some litigators during the pandemic. Hearing from Helen Brown, Partner in Dispute Resolution at Paris Smith, she states that the Courts have adopted a more flexible approach – adjourning, relisting and moving cases on the ping of an email, which has had a positive impact on her work.

“It is also a bonus not to have to be “suited and booted” every day, especially being able to ditch the high heels. Everyone is the same height on a Zoom call, and it is more comfortable not to have to conduct the hearing in a suit.

“I believe my opponents (the lawyers at least) have been kinder and more empathetic.  There is a real “Dunkirk” spirit, of us all being in this together in contrast to the “every man for himself”.

There have been hard lessons learnt here and many more yet to come. It is without a doubt, however, that the pandemic has showcased the legal sector’s true malleable nature to ensure justice remains at the forefront of the legal sector. There have been good outcomes, and not so desirable ones, and we can only wait and see what aspects remain on the other side of the pandemic.

 

[1] *Figures rounded to nearest 50. Source: Her Majesty’s Court and Tribunals Service

[2] https://www.actionfraud.police.uk/alert/coronavirus-scam-costs-victims-over-800k-in-one-month

[3] file:///C:/Users/Jaya/Downloads/pandemic_profiteering-how_criminals_exploit_the_covid-19_crisis.pdf

[4] https://www.cps.gov.uk/cps/news/prosecutors-prioritise-serious-cases-manage-impact-coronavirus-pandemic

[5] https://www.cps.gov.uk/legal-guidance/coronavirus-interim-cps-case-review-guidance-application-public-interest-covid-19