Crown Court extended hours pilot: guidance for litigators and solicitor advocates
HM Courts and Tribunals Service (HMCTS) has piloted COVID Operating Hours (COH) in seven crown court centres as part of its criminal recovery plan to address the growing backlogs.
The structure of the pilot is that certain types of cases will be listed for the trial to commence at 9am, continuing until 1pm, with a different trial to begin in the same courtroom during the afternoon, from 2pm until 6pm.
These cases will therefore be proceeding outside the traditional court hours of 10am to 4pm and may present some challenges and opportunities for the litigators and advocates involved.
The listing of cases is a judicial function and, as officers of the court, litigators and solicitor advocates are bound to obey any lawful order of the court.
HMCTS published a rapid consultation to determine whether HMCTS should extend the COH model to more courts. We're currently awaiting government’s response to this. We've set out the below guidance if a decision is made to roll out these proposals.
You should make clear to your advocate at the plea and trial preparation hearing whether you consider the case is suitable for an EOH listing.
You may need to consider whether you will be available to attend court, where necessary, at an earlier or later time, or are able to be on standby to deal with any requests for assistance from the advocate that may arise during the extended times.
In privately funded cases, if you are not able to be available to attend, or to be on standby, you should instruct your advocate as to the reasons why you will not be available. These may be professional reasons, for example that you will be engaged on other work at the proposed time, or personal reasons, such as health issues or care responsibilities that preclude an early start or late finish.
You may want to avoid having the same advocate that you have instructed in two separate cases listing these cases on the same day, to avoid a very long day for both you as the litigator and them as advocate.
If your client’s case is funded under the Legal Aid Agency Litigators’ Graduated Fee Scheme, there is no fee for you to either attend court or be on standby. You will however need to let your advocate know if you are not going to be on standby as they may expect this.
If your client is paying privately for your services you will need to discuss and agree with your client any fee to take into account the extended times you will be in court or on standby, during the extended times.
Paragraph 8.7 of the Solicitors Regulation Authority (SRA) Code of Conduct for Solicitors states that clients should receive the best possible information about how their matter will be priced, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of the matter and any costs incurred.
You may need to make arrangements with any of your salaried staff acting in cases that are listed with extended hours as to payments for overtime or other arrangements such as time off in lieu.
If you are changing the terms and conditions of an employment contract, which often include standard working hours, you will need to get the agreement of the employee.
You should be aware of your duties as an employer, under the equalities legislation, to ensure that in deploying your staff and making adjustments to their contract you do not unlawfully discriminate against them. It is best to have clear policies on how out-of-hours work will be staffed and remunerated to ensure you have a consistent approach to all staff.
To best understand your capacity to match out-of-hours demands it may be useful to record who is prepared to work when before the pilot begins. It is possible that some members of staff are unable to work outside their normal hours due to care commitments.
At the plea and case management hearing you should make submissions to the court as to whether the case is one in which extended hours may be appropriate or not, depending on the circumstances of your client and their health, employment and caring responsibilities, and the circumstances of your health and caring responsibilities.
If you are employed by your firm, you should discuss with your employer payments for overtime or other arrangements such as time off in lieu to compensate you for any work outside the terms of your contract of employment. Some firms will have decided their policies on these matters before the pilot starts.
If you are a freelance solicitor advocate you may wish to take into account the extended hours in negotiating your fee with your instructing solicitors, bearing in mind that each court day will be shorter than usual for the individual case.
The trial is likely to take place over more days when compared with a trial that proceeds during traditional hours of two full sessions each day.