The Law Society has published guidance for practitioners faced with the prospect of working extended court hours ahead of a pilot beginning next week.
Covid-19 operating hours will be piloted for at least one month at Liverpool Crown Court as part of HM Courts & Tribunals Service’s coronavirus recovery plan. The court will have separate lists for the morning and afternoon. The morning list will operate from 9am to 1pm. The courtroom is then cleared and cleaned. The afternoon list will operate from 2pm to 6pm.
The Society has issued guidance for litigators and solicitor-advocates but said it has repeatedly made clear to the Ministry of Justice that extended hours are not the right approach to tacking the court backlog.
Simon Davis, president, said: ‘Despite our opposition, a pilot is going ahead to test out a model of extended hours. Court listing is a judicial function, so if a court chooses to list hearings in this way, there is little the profession can do about it.
‘If extended court hours are to be imposed on solicitors, the additional costs they face must be covered so they can continue to do their job properly, uphold the rule of law and allow people access to justice. If, even with additional payments, the defence community does not have the capacity to cover the additional hours, there will be no magic wand that can be waved to generate it.’
The guidance tells litigators to inform their advocate at the plea and trial preparation hearing whether the case is suitable for an extended court hours listing. Litigators will need to consider if they will be available to attend court or be on standby to assist.
In privately funded cases, litigators unable to attend court should let the advocate know why. Fees taking into account the extended hours should be discussed and agreed with the client.
If the case is funded under the Legal Aid Agency’s graduated fee scheme, there is no fee for the litigator to attend court or be on standby, but the litigator should still tell the advocate they will not be on standby.
To avoid unlawful discrimination, employers should have ‘clear policies’ on how out-of-hours work will be staffed and remunerated, and record who is prepared to work.
Solicitor-advocates should make submissions at the plea and case management hearing on whether the case is appropriate for extended court hours. In-house solicitor-advocates should discuss with their employer overtime payments or time off in lieu. Freelance solicitor-advocates should take into account extended hours during fee negotiations, bearing in mind each court day will be shorter than usual for the individual case.
Covid-19 extended hours will be tested in up to seven courts, including Hull, Stafford and Snaresbrook.
Despite the guidance, the Society urged the ministry to first make maximum use of normal court hours and the existing court estate, quickly take up further building space and avoid sitting restrictions for judges.
*The Law Society is keeping the coronavirus situation under review and monitoring the advice it receives from the Foreign & Commonwealth Office and Public Health England.