Access to justice during the Coronavirus

Access to justice during the Coronavirus

Now that the semi-lockdown has been in place for a month in Belgium, it is becoming increasingly clear that the restrictions imposed by the government will continue to have a significant impact on the functioning of society and companies for some time to come.

You may be confronted with commercial partners against whom you urgently or less urgently want to take legal action because of the crisis or for other reasons. 

Perhaps you are already involved in an ongoing procedure or you have already obtained a ruling allowing you to claim payment from a counterparty.

For all these situations, there are important changes since the courts and tribunals have not been exempt from emergency measures. In the past weeks, they have been looking for a balance between continuity and the proper functioning of justice on the one hand, and protection of health on the other hand. 

After a few cautious initiatives of their own, Royal Decree no. 2 was published on 9 April 2020 (“RD No. 2”) which has a major impact on almost all civil proceedings in Belgium, and this with immediate effect.

Initiation of proceedings - extended limitation periods

In recent weeks, it has already been impossible to initiate ordinary cases in most courts. Only urgent cases (e.g. interlocutory proceedings) could be initiated. It was also still possible to issue a writ of summons in order to interrupt a period of limitation, without however being able to deal with the case itself in the short term.

RD No. 2 meets the difficulties of initiating new cases. Limitation periods and other time limits for bringing an action (before a civil court) that expire in the period from 9 April 2020 to 3 May 2020 (the end date can still be adjusted) ("Covid-19 Period") are automatically extended to one month after the end of that period. There is therefore no need to issue a writ of summons during the Covid-19 Period for this reason.

In concrete terms: if a limitation period would normally have expired on 20 April 2020, it will now expire on 3 June 2020 (or a later end date).

The course of procedures

Once a procedure has been initiated, it normally follows a process of exchanging written submissions (briefs) according to a set timetable. A late submission is penalised  by exclusion from the debates.

Such timetables for briefs and, in general, all procedural deadlines under penalty of disqualification or any other sanction, that expire during the Covid-19 Period, are also extended to one month after the expiration of that period. Any subsequent periods will be automatically adjusted in accordance with the duration of the first extension. If this results in the expiry of the last term being less than one month before the hearing, that hearing will be adjourned to the next available hearing one month after the expiry of the last term. This may therefore result in an undesirable delay of the proceedings.

In order to escape the postponement of the time limits, a party may, by a reasoned request to the court, claim that the continuation of the proceedings is urgent and that a delay is dangerous. In that case, the other party will be given the opportunity to respond. It is the court that will ultimately decide. No appeal is possible against its decision.

Parties’ lawyers can also agree to keep the initial time limits, or agree on new binding time limits. This is encouraged by the courts and tribunals. 

Elimination of pleadings

Normally, each case is concluded with an oral hearing, during which the lawyer will plead the case and the court may ask questions. This approach has now been temporarily modified.

Cases that have been determined for hearing up to and including 3 June 2020 (the final date can be adjusted) in which all parties have filed their briefs and (possibly) exhibits, will automatically be dealt with in writing. 

If all parties argue that they wish to plead anyway, the case will be postponed to a later date. If not all parties object to a written approach, the judge will decide entirely at her or his discretion whether or not an oral hearing (possibly by videoconference) will take place. No appeal is possible against this decision. 

In any case, a judge has the possibility to ask for certain oral explanations when treating a case in writing, possibly by videoconference. 

Filing an appeal

Deadlines for legal remedies (mainly opposition or appeal) that expire during the Covid-19 Period are automatically extended to one month after the expiration of that period.

Enforcement of an enforceable judgment

RD No. 2 does not contain any provisions regarding the enforcement of an enforceable judgment. In principle, therefore, this remains possible. However, the Belgian Chamber of Bailiffs has asked its members to only serve deeds and to only proceed to enforcement in cases of urgency. In practice, depending on the situation, it may therefore be difficult to have a judgment served on a counterparty or to obtain its enforcement.

Conclusion

Access to justice is less simple in Corona times, but of course not impossible. RD No. 2 has built in certain safeguards which make it possible to sit back for the moment.

Nevertheless, this crisis may be the perfect opportunity to consider alternative dispute resolution, such as arbitration, mediation, binding third-party decisions and negotiations.

Lydian will be happy to assist you in identifying the best strategy for resolving your dispute.