On 22 April 2020, Mr Justice Teare handed down judgment in the case of National Bank of Kazakhstan and the Republic of Kazakhstan. This trial ran from 26 March 2020 and was the first English Commercial Court trial to run virtually. The judgment was also handed down remotely.
The judgment granted declaratory relief confirming that the US$530m of cash deposits held by BNYM under a Global Custody Agreement are owed solely to the National Bank of Kazakhstan (the counter-party to the agreement) and not to the Republic – National Bank of Kazakhstan and the Republic of Kazakhstan v The Bank of New York Mellon, Anatolie Stati and others [2020] EWHC 916 (Comm).
As reported on previously, the fate of the trial was uncertain due to the travel restrictions and social distancing measures in place following the outbreak of Covid-19. However on 19 March 2020, less than three business days before the trial was intended to start, and in one of the first rulings on the continuation of a civil trial in the current circumstances, Mr Justice Teare rejected an application by the second to fifth defendants to adjourn the trial and directed the parties to cooperate and make the necessary arrangements for the trial to proceed as a fully virtual trial. He said this:
“The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now in all jurisdictions must be that a hearing should be conducted with one, more than one, or all participants attending remotely. I accept that for various reasons, in particular the geographical location of the expert witnesses, this exercise will have particular challenges. But it seems to me that having regard to the need to keep the service of public resolution of disputes going, it is incumbent on the parties to seek to arrange a remote hearing if at all possible.”
After a short adjournment to allow for the necessary arrangements to be put in place and testing of the chosen video conferencing technology as a means of conducting a trial, the fully virtual trial took place between 26 March and 1 April 2020 with all participants (judge, counsel and witnesses (factual and expert) participating by video conference from England, Belgium, Kazakhstan and the United States. For full details of our experience see a recording of a webinar that we ran, here.
In his judgment (a copy of which is available here), Mr Justice Teare expressed his gratitude to all those involved in ensuring the trial went ahead as planned:
“The hearing was conducted without any technical hitch and all parties co-operated to ensure that the hearing took place efficiently and fairly. I am very grateful to the parties, their solicitors and counsel, the witnesses, transcribers, the suppliers of the necessary software and my clerk for enabling a case in the Commercial Court involving international parties and witnesses from several countries to take place notwithstanding the impediments caused by the outbreak of coronavirus.”
Fiona Gillett, the partner who ran the case, commented:
“As a firm we are first and foremost delighted with the outcome of the trial for our clients but we are also proud to have led the way in ensuring the continued administration of justice and demonstrating that many perceived technological or other difficulties in holding a virtual trial are not insurmountable.”
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