Historically, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations provided an exemption to self-isolation to “fulfil a legal obligation, including attending court or satisfying bail conditions, or participating in legal proceedings”. However, both the Bar Council and HMCTS have publicly advised that no one, including barristers, should go to court if they have tested positive for coronavirus or have symptoms, and that they should, instead, self-isolate. On 28 February 2022, HMCTS confirmed that their position remains unchanged and that court users should not come to their court buildings if they have coronavirus symptoms or have tested positive for coronavirus or are waiting for a test result.
Where barristers feel well enough to attend court, they should ask the judge for permission to appear in court remotely or seek an adjournment. The request that they make will depend on how ill they are and which approach will best serve the interests of their client. If they do not feel well enough, or cannot participate remotely, then they are reminded that, under rule C26.3.b of the BSB Handbook, they may cease to act on a matter on which they are instructed and return their instructions if they are self-employed, and illness makes them unable reasonably to perform the services required in the instructions. In deciding whether they should return their instructions, they should also have regard to gC83 of the Handbook, which states that “In deciding whether to cease to act and to return existing instructions in accordance with Rule rC26, you should, where possible and subject to your overriding duty to the court, ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance.”
If returning instructions under one of the rC26 provisions, the barrister must comply with rC27; “Notwithstanding the provisions of Rules rC25 and rC26, you must not: .1 cease to act or return instructions without either: .a obtaining your client’s consent; or .b clearly explaining to your client or your professional client the reasons for doing so; or.2 return instructions to another person without the consent of your client or your professional client.”