September marks the return of different activities and institutions after the summer break and this includes the courts that resume full operations at the beginning of the month. The circumstances are, however, very different from previous years. The pandemic has forced a change in the way we interact with each other and, in turn, this reflects on the way the courts operate.
During lockdown in Portugal and in the period between 9 March and 3 June, procedural deadlines for non-urgent cases were suspended and, as a rule, no procedural acts were to be carried out, except for automatic acts like the distribution of cases to the appropriate courts, or summonses and notifications.
However, whenever all parties were able to take steps online, using the official platform of the courts (Citius) or by means of distance communication resources, including teleconferencing, video calls, or similar (such as Webex or Skype), in-person acts such as a preliminary hearings or trials were held, and non-urgent acts that could be carried out remotely were performed. In that period, the Superior Council of the Judiciary announced that 157 virtual rooms came into operation in the courts of first instance, the appeal courts, and the Supreme Court of Justice.
Additionally, all steps in enforcement actions were suspended including sales, collective insolvency proceedings, transfers of real property, and attachments and their preparatory acts. The only exception was if the non-performance of such acts would cause serious harm to the livelihood of the creditor, or irreparable harm. The decision on the harm and the consequent conclusion of the act depended on a prior judicial decision.
Following the end of the state of emergency measures and from 3 June, the deadlines and in-person acts were resumed, but few hearings were scheduled to happen before the summer break that started on 15 July. Only now, after the summer break, will the new rules and requirements for the courts operation be put to the test.
To reassure all intervening parties, the Ministry of Justice has announced that "More than 90% of the Portuguese court rooms were considered suitable for holding court hearings and around €700,000 was invested in protective and hygiene materials that include more than 2,000 separation acrylics, 11,000visors, 12,000 litres of surface disinfection material, and 15,000 litres of disinfectants for personal use, among others."
Moreover, "Recruitment procedures for operational assistants, through mobility of staff, were opened in 108 centres distributed throughout the various districts and addenda to the cleaning service contracts in force were signed for the placement of more cleaning stations at an expense of around €5 million."
In contrast, the president of the Portuguese Bar Association feels that "the Ministry of Justice's concern has only been to ensure protection for magistrates and officials, and it has completely disregarded the risks that exist for lawyers and citizens that it calls to the courts". He also argues for the "return of the courts to decent buildings" as a measure to ensure safe working conditions for all participants in their acts. Considering the current trend pushing for the use of distance communication and the increasing importance of teleworking, this call for real estate investment by the Ministry of Justice seems misplaced.
More importantly, as previously addressed the performance indicators of the Portuguese justice system have been improving significantly in recent years and, tackling a possible negative impact of the pandemic on the pre-existing bright state of affairs, the Ministry of Justice's announcement adds that, in December 2019, the first instance courts had reached the lowest number of pending cases since statistical record began. It further states that the judicial year closed with 754,228 cases across the country, excluding cases in the penalties enforcement courts, down from 1.3 million cases at the end of 2015. The government's release also states that "This decrease will contribute decisively to balancing the increase in cases that is expected for autumn 2020.".
In fact, the Portuguese Minister of Justice has acknowledged that the measures to suspend deadlines and limit court hearings and the expected increase in demand from the justice system will inevitably bring great pressure to bear on the courts. However, she has also pointed out that our justice system is now equipped with means that make it possible to find out in good time about trends in the number of cases and for local and central management bodies to communicate and organise faster.
Moreover, even of the pandemic had not intervened, in dispute resolution, negotiating should be the first option. As a rule, judicial actions are time consuming and expensive, so it is essential to be proactive, approach business partners, start negotiations early and consider all negotiation possibilities before going to court.
The negotiation stage is intended to settle the dispute, but the preparation of a potential court case should not be neglected, because some of them will be unavoidable. It is important that this stage is subject to without prejudice privilege and the obligation of confidentiality. It is also important that any agreement effectively binds the parties and stands up in court in the event of non-compliance. Of course, in more critical situations, the diagnosis will have to consider participating in recovery proceedings with creditors or debtors, or to apply for or submit to insolvency. Needless to say that these circumstances can only be steered with the assistance of a litigation lawyer early on in the process.
In a nutshell, these are times of great uncertainty that the Portuguese civil justice stakeholders need to navigate with the appropriate actions, and considering our pre-existing conditions and the measures in place, we see no reason to fear a dramatic deterioration in the courts' clearance rate, nor in the average time taken to resolve a case.