Civil Justice and Covid-19

The impact of the coronavirus pandemic on the civil justice system across the globe. Fifteen countries contribute to provide interesting reading now contained in a report.

The coronavirus pandemic has had a tangible impact on the functioning of the civil justice system across the globe. What are the consequences of Covid-19 for the civil justice in different countries? Is there a great variety in the impact of the virus on civil justice between various countries? It is likely that the impact of the virus is not the same in every country, nor is the way in which governments respond to the situation identical.

Different times, different countries, different consequences

In early April, we invited colleagues representing several countries to write short pieces concerning some of the most pressing and interesting issues in their respective country, in order for us to be able to explore the above questions. We opted for an open, exploratory approach, because we were more interested in gaining a broad insight into the challenges (and unexpected possibilities) civil justice systems across the world are encountering, rather than quantifying the prevalence of certain measures. By comparing developments in a range of countries, we wished to explore both the difficulties courts are facing, and the variation in the solutions adopted.

Many colleagues responded positively, providing us with their report at short notice. Just three weeks after the request was sent to our colleagues across the globe, we were able to publish the combined report. It contains chapters from fifteen countries, an Introduction and some general remarks to conclude.

The first thing we noticed after reading all the individual country reports was obvious and far from surprising: there are a variety of consequences for the civil judiciary, not only between countries, but also over time. Initially, courts in many countries went into lockdown, at least for the vast majority of cases. Since then, courts have gradually taken steps to adapt to the new reality and to cope with new problems. In other words: What seems appropriate today may be considered outdated next week, depending on, what one can call, the societal impact of the virus and the current status of the fight against it. Therefore, it is clear that the reports per country are snapshots in time and do not provide an overview with a timeline of the status per country.

Five general topics

What else have we learned from this research? Clearly, the general measures to contain the pandemic taken in each country engenders diversity, and issues related to digitisation are omnipresent. Still, we found interesting variation among the fifteen countries studied, as well as convergence in respect of some topics. Digitisation of proceedings is an obvious aspect, but for this research not the most interesting part as such for us.

We identified five (other) general topics. The first topic is the extent, form and frequency of legislative changes that have taken place to enable courts to function in this exceptional situation. The second aspect relates to issues arising from the fact that courts have been fully or partially closed, such as how to determine whether a case should be considered urgent. The third topic is the transition to online and remote proceedings, which encompasses inter alia the extent to which legislation existing prior to the crisis foresees in online and remote proceedings, the role of legal culture facilitating or impeding change and how variation in how willing each individual judge is to experiment with tools can be problematic. The fourth aspect relates to the increased use of written proceedings and adaptations to procedural rules. It raises the question of how to balance flexibility with predictability, a recurrent topic in civil procedure research. The fifth topic is how the current situation might influence litigation costs, access to justice and the quality of justice both in the short term and the long term.

And what about the long-term effects of the coronavirus on the civil justice system? It seems too soon to answer that question. Dealing with numerous postponed hearings and the surge of coronavirus-related cases will pose a challenge, at least in the months to come. One question is whether the emergency legislation (or parts of it) enacted during the state of exception will be permanent in some countries. Many of the enacted solutions have been drafted hastily and may challenge the basic tenets of fair trials. The state of exception and austerity caused by the lockdown could result in reduced funding of courts and increased court fees, as well as higher or lower compensation for lawyers. Will the influx of online hearings propel a landslide cultural shift, or will those judges who are nowadays resisting changes to their practices adapt and implement new practices – be it profound or more superficial changes, or perhaps return to their old habits once the situation is over? The final answer to Covid-19-related questions on substantive private law (force majeure, unforeseen circumstances, class actions, etc.) may take a while as well. Perhaps it is even too soon to hope that it will bring at least some positive elements for the procedural world. But as long as the pandemic is around, it is hoped that legal systems across the globe will keep finding a more or less acceptable way to adapt and adjust.

The colleagues who participated in this project are Bart Krans (Netherlands), Anna Nylund (Norway), David Bamford (Australia), Laura Ervo (Finland), Frédérique Ferrand (France), Aleš Galič (Slovenia), Wolfgang Hau (Germany), Jordi Nieva Fenoll (Spain), Clement Salung Petersen (Denmark), Catherine Piché (Canada), Piotr Rylski (Poland), Elisabetta Silvestri (Italy), John Sorabji (England and Wales), Vigita Vėbraitė (Lithuania) and Hermes Zaneti jr (Brazil). The introduction and conclusions were written by Bart Krans and Anna Nylund.

This blog is partially based on texts contained in the report ‘Civil Justice and Covid-19’. This report, with contributions from fifteen countries, an Introduction and Concluding Remarks on Civil Justice and Covid-19 can be found on https://doi.org/10.7557/sr.2020.5

Posted by Professor Bart Krans (Leiden University) and Professor Anna Nylund (UiT The Arctic University of Norway).

This post was first published on the Leiden Law Blog (4 May 2020). It is reproduced here with kind permission. Click here for the original piece.