Re One Blackfriars Ltd (In Liquidation) [2020] EWHC 845 (Ch)
This article originally appeared in a Covid-19 Special Issue (April 2020).
At a pre-trial review on 1 April 2020, the joint liquidators of One Blackfriars Ltd applied to adjourn a 5-week trial which was due to start on 8 June 2020. The Applicants argued that the adjournment was necessary due to the restrictions caused by the coronavirus pandemic.
The trial was due to involve 4 live witnesses and 13 expert witnesses. At the outset, it was noted that the earliest that the trial could be rescheduled for was early 2021. Furthermore, the Respondents did not agree that the adjournment was necessary.
The submissions
The submissions were best summarised by the judge at [11] to [12]. The Applicant submitted that:
“a. To proceed with the trial would be inconsistent with the Prime Minister’s instruction to stay at home except for very limited purposes, issued on 23 March 2020, and more commonly referred to as the ‘Lockdown’.
b. The trial, he submitted, cannot proceed without exposing participants and others working behind the scenes to an unacceptable risk to their health and safety.
c. The technological challenge posed by a five-week trial was too great. Such technology, as exists, he said, was untested.
d. There is a real risk of unfairness or potential unfairness in conducting a remote trial of this claim.”
In response, the Respondent argued that:
“a. 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.
b. A properly arranged remote trial could proceed without endangering the safety of the individual participants or the public.
c. The technology to conduct a fully remote trial is already available and has been successfully deployed already in some cases.
d. Whilst a remote trial will present challenges to all involved, it would not lead to unfairness.
e. 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.”
Judgment
As to the Applicants’ first argument, that to proceed with the trial would be inconsistent with government advice regarding the lockdown, the judge did not agree with the Applicants. He agreed with the Respondents that the tenor of the Coronavirus Act and the Coronavirus Regulations were that: “the legislature is sending a very clear message that it expects the courts to continue to function so far as they able to do safely by means of the increased use of technology to facilitate remote trials.” [23].
He also referred to the message from the Lord Chief Justice to the judges of the Civil and Family Courts, the Remote Hearing Protocol, the further message from the Lord Chief Justice regarding court arrangements, Practice Direction 51Y and a decision of Teare J in National Bank of Kazakhstan and Others v Bank of New York Mellon and Others dated 19 March 2020. He concluded at [37] that:
“If a remote trial is ordered pursuant to Remote Hearings Protocol, then it seems to me that the Coronavirus Regulations permit, for example, a witness to travel to a solicitors’ office or to any place equipped with a high-quality video link to give evidence, or for counsel to do the same thing to make submissions. The Coronavirus Regulations would also, in my judgment, permit an employee of a remote trial service provider to travel to any location (including a witness’ home) to assist with the set-up and oversight of the operation of a remote trial technology.”
As to the issue of safety, the judge noted that the pandemic was a fast-moving situation and much may change between the date of the judgment and that of trial, such that an adjournment was not yet justified. As to the risk that a remote hearing might pose to those participating who could be classed as vulnerable or had caring responsibilities, the judge noted that no evidence had been presented of any particular difficulties which participants might face and the parties had not yet ascertained whether those difficulties could be mitigated. In so far as difficulties existed, the judge expected the parties to co-operate to try and resolve these and propose solutions. Finally the judge noted that some aspects of preparation could be safely completed in the run-up to the trial which would need to be completed regardless of whether the trial was adjourned e.g. exchange of expert memoranda and agreeing the trial bundle.
As to the technological challenge, the judge noted that two trials had taken place since 16 March 2020. He concluded at [50] to [51] that:
“I am not satisfied, however, that the technological challenges which no doubt will be presented are so great as to make it appropriate to adjourn now. In my judgment, co-operation and planning is essential if a remote trial in this case is going to be possible, and that is why I have ordered the parties to co-operate in seeking potential remote trial platforms and document handling systems. In light of the comments by Birss J cited above I would expect any proposed system to subject to robust testing from as many of the locations from which participants are likely to be giving evidence (or making submissions) not only to ensure adequate video and audio quality but to ensure that documents can be displayed quickly. In particular, careful attention must be paid to the Internet bandwidth available at the locations from which witnesses intend to give evidence…my current view is that it may well be preferable for witnesses to travel to a few locations as close as possible to their home, such as solicitors’ offices or other premises, with dedicated servers and IT staff on hand, rather than to dial in from home without any assistance. That also will alleviate the anxiety that many people suffer from, including judges, when it comes to the moment of being dialled into proceedings and to being interrupted in the course of the proceedings by unexpected household events.”
As to fairness, the judge found that the challenges of a remote hearing would affect both sides equally, as they were equally well-resourced sophisticated parties.
Finally, as to the overriding objective, the judge noted that the litigation had been hanging over the Respondents’ heads since 2011, and it would also not be in the Applicants’ interests to delay matters.
Furthermore at paragraphs [56] to [57] he noted, “I also take account of the fact that virtually every step in this administration was recorded, or appears to have been recorded, in a contemporaneous document…. There are no allegations of dishonesty or fraud. So whilst it is undoubtedly the case that both sides must have the opportunity to put contemporaneous documents to the factual and expert witnesses, it is not, it seems to me, a case in which it can be said that it is essential to have the witness, the cross-examiner and the judge and the other participants in the same physical space.”
Comment
This judgment, whilst not in the medical context, provides some guidance as to how the courts are approaching applications to adjourn trials. The clear message is that, where possible, trials ought to proceed. However, in some cases this may not be appropriate. For example, if there are large factual disputes between the parties or allegations of dishonesty or fraud, it may not be suitable.
In medical cases of any kind, there are likely to be other relevant considerations which do not apply in other cases. For example, witnesses who are medical professionals may not be able to make themselves available to give evidence. The judgment also highlights the importance of obtaining solid evidence of a participant’s caring responsibilities or vulnerabilities and efforts taken to mitigate these before relying on this as a reason for adjournment.
A further, more recent decision, which may be of interest to readers is Heineken Supply Chain BV v Anheuser-Busch Inbev SA (Rev 1) [2020] EWHC 892 (Pat), considers an application to extend by two weeks the deadline for reply evidence and to push back the trial start date to outside the trial window. Daniel Alexander QC, sitting as a Chancery Judge, refused the application.
At paragraph 28, the judge noted: “In considering this issue, it is, however, necessary to bear in mind, particularly in current circumstances, that while lawyers are preparing expert evidence, some of their often much less well-remunerated compatriots may be putting themselves and their families at risk in saving lives, working long hours in inhospitable conditions. The guidance to which I have referred strongly suggests that, where it can be safely done and without risks to the integrity of the legal process, the wheels of justice should keep turning at their pre-crisis rate. It is not unreasonable to expect that lawyers concerned in keeping cases on track may need on occasion to push a little harder to enable that to be achieved. I also bear in mind that the nature of the proposed expert evidence is such that what may be lost in polish as a result of having fewer hours devoted to it by lawyers may be gained in raw authenticity, as well as the fact that a more limited time encourages confining the evidence to that which is truly essential.”
