COVID-19 UK: Litigation – Keeping the show on the road: the English courts give further guidance on adjournments and extensions of time – Update

Orrick, Herrington & Sutcliffe LLP

A recent judgment of the English High Court provides helpful guidance on the courts' approach to managing cases in response to the practical difficulties caused by the COVID-19 pandemic (Muncipio de Mariana and others v BHP Group plc [2020] EWHC 928 (TCC)). This case illustrates that parties are expected to make extra efforts to comply with deadlines in the current circumstances and while extensions of time and postponement of trial dates may be granted, these will depend on the facts of each case.

Background

The proceedings in question arose out of the 2015 collapse of the Fundão Dam in Brazil and the resulting spill of toxic materials and contaminated water. The claimants – an "extraordinarily large" class of individuals, private businesses and other institutions – brought a class action in the English High Court against the defendant companies. The defendants applied for a stay of the English proceedings on jurisdictional grounds.

The court originally directed that there should be a hearing in June 2020 to determine the question of jurisdiction. The pre-hearing timetable included service of expert evidence by the claimants and service of the defendants' reply evidence. However, the defendants applied to the court for an extension of five to six weeks, on the basis that they were unable to prepare their reply evidence in time due to the lockdowns in the UK and Brazil, and the travel restrictions between the two countries. The extension sought by the defendants would expire after the hearing date, making it necessary to vacate and re-list the hearing if the application were successful. The claimants opposed the defendants' application. Given the complexity and the international nature of this case, it raised real questions about the extent to which the English court believes parties can continue to fairly progress matters.

The court's decision

The court noted that the starting point is always the fundamental requirement that proceedings should be dealt with justly, proportionately and expeditiously ("the overriding objective"). When determining whether a particular hearing should be adjourned or should proceed remotely, the courts will also have regard to the following principles:

  • The continued administration of justice is important because "justice delayed is justice denied".
  • Courts must be prepared to hold remote hearings in circumstances where this would have been inconceivable before the lockdown.
  • Courts should not dismiss the option of a remote hearing without a rigorous examination of whether such a hearing could be conducted fairly.
  • The question of whether a remote hearing can provide a fair resolution will be case-specific. Relevant factors will include the extent to which live evidence and cross-examination are necessary.

In addition, applications for extensions of time in the context of the COVID-19 pandemic will be decided in accordance with the following principles:

  • The aim, where achievable, must be to be keep to existing deadlines. If it is not possible to keep to a deadline, the court should allow the minimum extension of time which is realistically practicable.
  • Lawyers and professional expert witnesses will be expected to "go the extra mile" to meet deadlines.
  • The courts should be willing to accept evidence which is less polished and focused than would normally be required, if that is necessary to achieve timely production.
  • However, the courts must also be realistic and should take care to avoid requiring compliance with deadlines which are not achievable even with proper effort.
  • The courts must be conscious that it is likely to take longer and require more work to achieve a particular result (such as the production of evidence) by remote working.
  • It remains the case that an extension which results in the loss of a hearing date will be granted much less readily than an extension of time which does not have that effect.

Applying these principles, the High Court was satisfied that the exercise of preparing the defendants' reply evidence would take significantly longer in the current situation than provided for in the original timetable. The court therefore granted the extension sought and directed that the hearing should be re-listed for a remote hearing in July 2020.

Practical implications

The English courts are responding to the COVID-19 pandemic – including making decisions as to whether to reschedule hearings or extend deadlines – on a case-by-case basis. This latest decision can be contrasted with the recent decision in Heineken Supply Chain BV v Anheuser-Busch Inbev SA, in which the court granted only a short extension so as not to disrupt a hearing date. One difference between the cases was the scale of the work required to meet the deadline - in Heineken, there were only two experts, each of whom was to address a narrow issue. However, the courts will look at all the circumstances, not just the size of the litigation, when deciding how COVID-19 should affect the management of a claim.

Clear guidance is obviously welcomed – particularly in light of the 'hell or high water' approach which we previously highlighted was being taken in some case management decisions before now.

 

This piece is the fifth in our series of updates relating to how the English courts are continuing to administer justice throughout the ongoing COVID-19 crisis. Read our previous articles here:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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