Business as Usual (for now)
Parties should not take for granted that upcoming hearings and or trials will be automatically adjourned given the current COVID 19 pandemic.
The decision of Mr John Kimbell QC sitting as a Deputy High Court Judge in the case of Re Blackfriars Limited  EWHC 845 (Ch) highlights the Court’s attempt to keep cases progressing in spite of what goes on elsewhere.
The current joint liquidators of One Blackfriars Limited (in Liquidation) (“the Company”) made an application pursuant to CPR 3.1(2)(b) to adjourn a five-week trial in June 2020 involving four witnesses and thirteen expert witnesses.
The basis of the liquidators’ claim were damages of approximately £250 million for the alleged mishandling of the administration of the Company by its former administrators.
The basis of the application (opposed by the Defendants who were the former administrators) was on the following four grounds:
- To proceed with the trial would be inconsistent with the Prime Minister’s instructions on 23 March 2020 to stay at home;
- A remote trial could not proceed without exposing those taking part to an unacceptable risk to their health and safety;
- The technological challenges in conducting a remote trial were too great; and
- There was potential for unfairness in conducting a remote trial.
The submissions in response in summary were:
- Far from being inconsistent with Government instructions, to proceed with the trial would be fully in accordance with both the primary legislation enacted in response to the COVID crisis and specific guidance given to the civil courts, both of which make clear that the appropriate response is to proceed with as many hearings as possible using video and remote technology;
- A properly arranged remote trial could proceed without endangering the safety of the individual participants or the public;
- The technology to conduct a fully remote trial is already available and has been successfully deployed already in some cases;
- Whilst a remote trial will present challenges to all involved, it would not lead to unfairness.
- The application was in any event premature because the parties have not yet had an opportunity to explore all of the remote technology options for a trial which, after all, is not scheduled to take place for another ten weeks.
The application to adjourn was refused, despite the Judge being “more than satisfied” that the application was “entirely due to real concerns whether a trial can take place safely and not for tactical reasons”.
The Judge took account of, but was not limited to, the following:
- the Coronavirus Act 2020;
- the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, S.I. No. 350;
- the message from the Lord Chief Justice to the Judges of the Civil and Family Courts on 19 March 2020;
- the revised Protocol regarding Remote Hearings, published on 26 March 2020;
- the further message from the Lord Chief Justice on 23 March 2020 on the Review of Court arrangements due to COVID-19;
- Practice Direction 51Y;
Considering all of the information before him, the Judge had:
“…no hesitation whatsoever in rejecting [the]…submission that to proceed with a remote trial in this case would be inconsistent with the guidance issued by the Prime Minister on the evening of 23 March 2020.”
The Judge found that the legislation and guidance was “…a clear and consistent message” that “as many hearings as possible should continue and they should do so remotely as long as that can be done safely”.
The Judge was aware that as part of flexible case management as indicated under the Protocol regarding Remote Hearings, parties were expected to cooperate to address the challenges and begin preparation earlier than they normally would to ensure that they are equipped to proceed by way of remote communication. The Judge was also mindful that remote trials have gone ahead successfully but “…whilst not underestimating for one moment the technological challenge”, the present case did not warrant an adjournment.
Given the above, where possible, hearings and trials will proceed to be heard remotely. The Court will assess the merits of any application to adjourn and will not accept the current situation as being a sufficient reason alone for an adjournment.