EXTENSION OF TIME GRANTED AND HEARING PUT BACK BECAUSE OF COVID-19 PROBLEMS: THE RELEVANT PRINCIPLES CONSIDERED

In Muncipio De Mariana & Ors v BHP Group Plc [2020] EWHC 928 (TCC) HHJ Eyre QC allowed the defendants extra time to serve evidence because of the coronavirus crisis and a hearing date was put back.  There is an interesting discussion of the relevant principles the courts consider when considering applications arising from problems caused by COVID-19.

“There is to be rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved consistent with justice before the court should accept that a just determination cannot be achieved in such a hearing.”

THE CASE

An application by two of the defendants to dispute jurisdiction was listed to be heard for seven days starting 8th June 2020.  The defendants were due to serve their evidence by the 1st May 2020. They applied for an extension of time due to problems arising from COVID-19 and associated measures.  This would lead to the hearing itself being relisted in July.

THE HEARING

Unsurprisingly the hearing was heard remotely.

The hearing of the application for an extension of time was conducted remotely by way of Skype and in private pursuant to CPR PD51Y with the concurrence and cooperation of the parties. As I explained at the start of the hearing I was satisfied that a remote hearing was necessary if the application was to be determined swiftly and that it was in the interests of justice for there to be such swift determination. It was not possible to broadcast the hearing in a court room and it was necessary for the hearing to be in private to secure the proper administration of justice. I am grateful for the positive engagement by counsel and solicitors on both sides in the steps necessary to conduct the hearing in that way.”

THE DEFENDANTS’ SUBMISSIONS

The judge explained the Defendants’s stance and and application for an extension of time.

The Defendants initially sought an extension of time of seven weeks saying that the effects of the Covid-19 pandemic and the restrictions put in place to deal with those effects had doubled the time which would be needed to prepare the reply evidence. They made the point that the lockdowns imposed in the United Kingdom and Brazil and the restrictions on travel between those countries came into effect just at the time when the Defendants’ lawyers were about to engage in the preparation of that evidence. They point out that the Claimants’ evidence was served on 13th/14th March 2020 with Brasilia going into lockdown on 14th March 2020 and entry into Brazil prohibited for non-Brazilian travellers from the United Kingdom on 23rd March 2020. They say that even with the making of proper efforts and the use of technology remote working takes much longer than traditional ways of working and that the deadline provided by the court timetable cannot be met. In that regard they refer to the difficulties involved in remote working and which are encountered by lawyers and other professionals having to operate from their homes rather than their normal workplaces. They set out particular difficulties faced by their experts as I will explain below. In the course of his submissions for the Defendants Mr. Gibson QC said that there had been further reflection and that the Defendants’ lawyers now believed that an extension of five to six rather than of seven weeks would suffice to enable the reply evidence to be prepared. The Defendants acknowledge that such an extension would require vacation of the hearing date. They seek a relisting in either July 2020 or in the Autumn with the latter being preferred because although they acknowledge that the hearing could be conducted remotely the Defendants contend that an in person hearing is markedly preferable and say that there is a greater chance of this being possible in the Autumn of 2020 than in July.

THE APPROACH TO BE TAKEN

The judge reviewed the rules and cases to date.

16. The starting point as always is the overriding objective with the requirement that cases are to be dealt with justly; in ways which are proportionate to the amounts involved, the importance of the case, and the complexity of the issues; and expeditiously and fairly.
17. In the current circumstances regard is also to be had to PD51ZA paragraph 4 which provides that:
“In so far as compatible with the proper administration of justice, the court will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions.”
18. The Claimants referred me to the decision in Quah Su Ling v Goldman Sachs International [2015] EWHC 759 (Comm) where Mrs. Justice Carr set out an analysis of the principles to be applied when the court is considering whether to permit a very late application to amend, a very late application being one where granting the amendment would result in the loss of an already fixed trial date. The salutary reminder there that the loss of a trial or hearing date is no little matter is to be borne in mind. Otherwise, however, the principles governing late amendments to pleadings in normal circumstances are of little assistance in determining the approach to be taken to an application for the extension of time for the filing of evidence where it is said that the circumstances of a worldwide pandemic and of national lockdowns have caused delay in the gathering of evidence.
19.Of markedly more assistance are those cases where the courts have addressed the problems arising from the current circumstances.
20. I have been provided with a transcript of the extempore judgment of Teare J in the unreported case of National Bank of Kazakhstan v Bank of New York Mellon. There Teare J declined to adjourn a trial fixed for the following week which could not, because of the measures required to address the pandemic, be held in the traditional face to face manner. Instead he permitted only a short adjournment of the start date so as to enable arrangements for remote conferencing to be put in place and required the parties to cooperate with a view to putting such arrangements in place. Teare J took that approach in the light of the guidance as to remote hearings given by the Lord Chief Justice on 19th March 2020. In that guidance (quoted more fully in the decision in Re Blackfriars Ltd which I consider below) the point had been made that remote hearings would become the default position and that inevitably hearings would have to be conducted remotely in order to ensure the continued provision of access to justice. Teare J went on to make the point that “the courts exist to resolve disputes” and that they should strive to continue to do so even when that involves doing so by way of remote hearings. Teare J’s decision was made the day before the publication of the “Civil Justice in England and Wales Protocol regarding Remote Hearings” which made provision for remote hearings and which began with the words “the current pandemic necessitates the use of remote hearings wherever possible”.
21. In Re Smith Technologies (unreported 26th March 2020) ICC Judge Jones noted the approach taken by Teare J and similarly rejected an application to adjourn a trial made by reference to the difficulties flowing from the consequences of the pandemic although he did leave open the possibility of adjournment for particular health reasons. Judge Jones explained in the following terms that the difficulties arising from self-isolation and from parties and their lawyers being in different locations were to be addressed robustly and that the parties were to be expected to take proactive measures to overcome such difficulties. Thus he said:
“7. The adjournment is sought in the context of serious concern about the ability of the respondents to give and receive instructions because of the different locations of counsel, solicitors and clients. Also, because of self-isolation itself with one of the respondents coming within a vulnerable category. However, I do not see that location and self-isolation should, in principle, lead to communication problems. I take the view that instructions can be taken without anyone hearing them during the trial, using mute on Skype and mobile phones, either directly or through apps. Indeed, visual communication can be maintained. Whilst self-isolation and vulnerability are, of course, important, the whole reason for remote hearings is to achieve self-isolation protection. Remote hearings, as such, should not present a problem.
8. It has been contended that the legal team for the respondents has no previous experience and there is insufficient time to learn to be able to participate fully and fairly. Bluntly, that is not good enough. Solicitors are going to have to act quickly. They need to practise Skype and put in place procedures to enable them to be effective trial lawyers. I have to observe that it is highly surprising that the technology available to a firm of solicitors is not more advanced than that available to the courts, but again I return to the fact that this is not difficult technology. Nor should it be difficult to organise an electronically presented defence.

12. Mr. Pearson, as I understand it, has poor internet connection. That is plainly a matter that needs to be resolved together with the question of his ability to use his mobile phone. Again, I do not anticipate that those matters cannot be resolved. For example, one can easily enter contractual arrangements to obtain a short-term good internet connection and I am sure that can be done whether through businesses such “my wi fi”, BT or others. I will be surprised if solicitors cannot assist whether by providing equipment or guidance.
13. In so far as family difficulties/space problems arise in practice, co-operation will enable the parties to discuss a special trial timetable with considerable flexibility to allow those problems to be dealt with. The Court will be willing to provide case management directions.”
22. In Re Blackfriars Ltd [2020] EWHC 845 (Ch) John Kimbell QC sitting as a deputy judge addressed an application made on 1st April 2020 in the context of the Covid-19 pandemic to adjourn a trail listed for five weeks beginning in June 2020. The deputy judge refused the adjournment and required the parties to cooperate in exploring the ways in which the trial could proceed by way of a remote hearing. I will not rehearse all of Mr. Kimbell’s careful analysis of the material. It suffices to say that he surveyed the effect of the Coronavirus Act 2020; the regulations made under it; the Lord Chief Justice’s guidance; the protocol; the decision of Teare J; and PD51Y. At [32] he rightly in my judgement said that:
“There is … a clear and consistent message which emerges from the material I have referred to. The message is that as many hearings as possible should continue and they should do so remotely as long as that can be done safely.”
23. Mr. Kimbell then addressed the potential difficulties which were said to be involved in the hearing of trials remotely. He surveyed the experience of the courts in conducting remote trials and reached, at [49], the conclusion that they had on the whole been successful albeit that they had been on a smaller scale than the five-week trial envisaged in that case. It was in the light of that assessment that the deputy judge declined the adjournment but instead required robust exploration of the ways in which arrangements for a remote hearing could be put in place.

THE JUDGE’S SUMMARY OF THE PRINCIPLES

There is a helpful summary of the relevant principles.

    1. In the light of those authorities and the material referred to therein I have concluded that the following principles govern the question of whether a particular hearing should be adjourned if the case cannot be heard face to face or whether instead there should be a remote hearing.

i) Regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances.

ii) There is to be a recognition of the extent to which disputes can in fact be resolved fairly by way of remote hearings.

iii) The courts must be prepared to hold remote hearings in circumstances where such a move would have been inconceivable only a matter of weeks ago.

iv) There is to be rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved consistent with justice before the court should accept that a just determination cannot be achieved in such a hearing.

v) Inevitably the question of whether there can be a fair resolution is possible by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether and if so to what extent live evidence and cross-examination will be necessary is likely to be important in many cases. There will be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote hearing.

THE FACTS OF THIS CASE

The judge found that there was clear evidence that the defendants were having major problems collecting evidence and dealing with their experts.

  1. In the light of those principles should the Defendants’ application be granted?
  2. The Defendants originally sought an extension of seven weeks (double the period provided for in the timetable) for the service of their reply evidence. They now say that a period of five to six weeks is likely to suffice.
  3. The Defendants point out that travel between the United Kingdom and Brazil is not possible explaining that the lockdowns in both countries were imposed just as the lawyers from the United Kingdom were about to travel to Brazil. The work has now to be done remotely giving rise to the difficulties I have summarised at [32 (vii) and (viii)] above. They say that these difficulties are particularly acute in the present case because of the volume of documentation which has to be considered and because of the need for interpreters to be included in the meetings conducted remotely.
  4. The Defendants have set out the particular difficulties which their expert witnesses in Brazil are encountering. Justice Rezek is aged 76. He lives in Sao Paulo but is currently in Brasilia having been there when the lockdown came into effect. He is accordingly separated from his staff and library. Although he has a personal computer and access to email it is said that Justice Rezek is not used to working away from his office or to operating technology without the assistance of his staff. Mr. Gibson placed particular emphasis on the separation of Justice Rezek from his library as being a matter hindering the preparation of his reply evidence. Prof. Didier is said to be having to devote considerable time to supporting his vulnerable parents and his wife who is a diabetic. It is said that he also has to spend considerable time addressing the problems the lockdown is causing for his law firm of more than 100 staff and partners dealing with administration and crisis management issues. He does not have access to his office and his internet connexion from home is slow and intermittent. The Defendants also say that their witnesses Messrs Vivan de Souza and de Freitas are handicapped by having to work from home.
  5. For the Defendants Mr. Gibson emphasised that the period of additional time sought is the result of careful assessment by the Defendants’ legal team. He pointed out that the application had not been made at the first indication of the problems associated with the Covid-19 pandemic but only after an assessment had been made of what could be done and how long would be needed. In this regard he points to the reduction in the length of the extension sought saying that this is an indication of the thought being given to the matter by the Defendants’ lawyers and that it is the result of a consideration of what steps can be taken by way of remote working. In addition the Defendants point to the extension which was given to the Claimants to take account of the difficulties caused by the Christmas, New Year and Carnival holidays in Brazil and the Minas Gerais flooding saying that the problems caused by the pandemic are of a different order of magnitude.
  6. On behalf of the Claimants Mr. Harrison accepts that the consequences of the pandemic mean that some further time is needed for the preparation of the reply evidence but says that a markedly shorter period of time is needed in reality than is sought by the Defendants. Mr. Harrison argued that the Defendants’ lawyers and experts could be expected rapidly to improve their skills in the use of remote technology so as to increase the speed with which work could be done remotely. In addition emphasis was placed on the fact that the evidence which is to be served by the Defendants is reply evidence and as such should be markedly more limited than first wave of expert evidence. In that regard Mr. Harrison made reference to the repeated judicial warnings to the effect that disputes as to jurisdiction should not be allowed to get out of hand and that the material adduced should be limited to that truly necessary to determine the issues. There is force in that point but in the circumstances here the preparation of the reply evidence is clearly going to be a substantial exercise as is shown by the fact that the original timetable envisaged a period of seven weeks being taken in its preparation.
  7. In a related argument Mr. Harrison expresses concern that there was a risk of the forthcoming hearing becoming unmanageable because of the volume of material which is to be produced. The Defendants’ evidence in support of this application set out the kind of material which it was believed would need to be included in the reply evidence. Mr. Harrison said the contents of this evidence suggested that the Defendants were intending to adduce evidence going beyond the scope of a reply to the Claimants’ evidence and going beyond that appropriate for the determination of the jurisdiction issues. I did not find that a persuasive argument. The issue for me is whether the consequences of the Covid-19 pandemic and the measures taken to address it warrant an extension of the time previously allowed for the provision of the evidence. If the Defendants try to put forward evidence going beyond that which is properly required as reply evidence in this case then that can be addressed in the normal way once the evidence has been served. In some cases the court is able to say that it is clear that the necessary evidence will be limited in scope such that the court can be confident that it can properly be prepared within an identified short period. This is not such a case. It is apparent that the preparation even of properly limited reply evidence will be a substantial exercise. I repeat that the question I have to address is the extent to which the current circumstances warrant an extension of the period previously allowed.
  8. The Claimants cast doubt on the points made by the Defendants as to the difficulties that the latter’s witnesses are facing. They refer to social media postings which have been made in the past by Justice Rezek and to lectures which are currently being broadcast by Prof. Didier by way of Instagram and You Tube. They say that in the light of these matters the court should regard the problems being put forward as having been exaggerated and in particular that the difficulties to which Prof. Didier is said to be subject should be treated “with some scepticism”. I do not find that the Defendants’ experts are deliberately exaggerating the difficulties that they face or that they are being anything other than genuine in the concerns they express as to how long it will take them to prepare the necessary evidence. The court would inevitably be cautious before making such a finding against these clearly distinguished professionals. The material put forward by the Claimants does not come close to justifying such a finding. However, I do take account of the scope for those reacting immediately to the onset of the pandemic and to the measures being implemented to address it to see the difficulties as greater and as more insuperable than is necessarily the case. That is not a matter of deliberate exaggeration but of a normal human reaction to the current unusual circumstances. I proceed on the basis of accepting that the problems expressed by the Defendants’ witnesses are real and are genuinely perceived as posing grave difficulties but also of being conscious that experience is rapidly showing ways in which such problems can be addressed and their effects reduced (but not removed).
  9. The Claimants argue that if an extension is granted and the trial moved then any revision of the timetable should be such as to ensure that the Claimants have a proper period of time before the new hearing date to consider the Defendants’ reply evidence. This is a compelling point. If justice to the Defendants requires an extension of time for the preparation of the evidence on the basis that this will be a substantial exercise needing more time in the current circumstances of remote working then justice to the Claimants requires that they be given a proper and adequate period of time to consider that material in advance of the hearing.
  10. I am satisfied that the Defendants have shown that in the current circumstances that even when all proper allowance is made for the use of technology and for the making of extra efforts the exercise of preparing the reply evidence will take significantly longer than was provided for in the timetable laid down in September last year. The points made by the Defendants as to the difficulties of remote working and the scale of the task to be undertaken are compelling in the circumstances here. I am satisfied that it will not be practicable for the reply evidence to be prepared by 11th May 2020 and that this is not due to any failing or deficiency on the part of the Defendants. In the light of the principles set out above I am satisfied that justice requires that the Defendants be given an extension of time of the order of the five to six weeks which they now seek notwithstanding the consequence which this will have of the vacation of the hearing listed for 8th June 2020.

THE HEARING RE-LISTED TO JULY

The judge did not accept that a lengthy adjournment was necessary. The matter was re-listed to July.  Given that remote hearings take longer the time estimate was extended.

  1. I approach this question in the light of the principles and considerations I have set out above. I also do so aware that the progress of the Covid-19 pandemic and of the measures to address it cannot be predicted with any degree of certainty. Matters might have moved to such a stage that it will be possible to have a traditional in person hearing in July alternatively the position could be such that it will not be possible to have such a hearing even in the Autumn. The most that can be said is that there is some scope for believing or hoping that the prospects of having an in person hearing with travel between England and Australia being possible are greater if the hearing is in the Autumn than if it is in July. However, matters cannot be put higher than that particularly as at least some commentators suggest there are likely to be waves of infection.
  2. This is a complex matter of considerable importance to the parties. There will be substantial documentation to be mastered, presented, and analysed. However, the determination of the issue will involve judicial reading of that material and of the parties’ skeleton arguments with subsequent oral submissions and argument. There will be no live evidence. In those circumstances this is clearly a matter which is capable of being fairly determined in a remote hearing (as the Defendants accept). A delay of a further period of three to four months is undesirable and is to be avoided if possible. This is particularly because as just explained there is no guarantee that an in person hearing will be possible in the Autumn (nor that it will inevitably be impossible in July). I have already explained that the detriment to the Seventh Defendant caused by the difficulties a remote hearing will pose to participation by its Australian lawyers is likely in reality to be modest and cannot justify a further delay.
  3. In those circumstances the June hearing will be vacated and the jurisdiction challenge relisted for hearing on 20th July 2020. In light of the possibility that hearing may be conducted remotely and mindful of the scope for that to require some increase in the time taken I intend to list it with an eight-day time estimate and with provision for pre-reading from 14th July 2020. In the light of that I will extend the time for the service of the Defendants’ reply evidence to a date in the week commencing 8th June 2020. I will hear submissions at the handing down of this judgment as to the precise date which is appropriate and as to the revision of the subsequent parts of the timetable to ensure that the hearing can proceed as proposed. That timetable will need to include provision for a pre-trial review/directions hearing to determine whether the July hearing will proceed remotely or in person and if the former in what way.