On 19 March 2020, a judge ruled that the trial of National Bank of Kazakhstan & Another v The Bank of New York Mellon & Ors should be allowed to continue the following week. The fate of the hearing was uncertain due to the travel restrictions and social distancing measures in place following the outbreak of Covid-19. This is one of the first rulings on the continuation of a civil trial in the current circumstances and an important indication that use of technology should allow court business to continue as normal.

Ali Malek QC and David Quest QC (instructed by Stewarts) for the claimant, contended that a remote hearing should be possible using one or more forms of video conferencing facilities.

Thomas Sprange QC (instructed by King & Spalding) for the defendants, argued that if a general adjournment was not granted, there should at least be a short adjournment as the defendant was not confident that video conferencing facilities of the appropriate quality and with the necessary facilities could be available the following week.

Mr Justice Teare (sitting in the High Court) decided that, despite any potential problems envisaged, the hearing should go ahead, initially, on Wednesday 25 March as a virtual trial i.e. with an adjournment of two days to enable the use of video conferencing technology. In his judgement, Teare J stated:

“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 hearings 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 by Wednesday of next week.”

 

Analysis of the hearing

Teare J set out the Court’s general position in regards to adjournments, namely that “…if at all possible arrangements should be made for the case to go ahead using remote facilities.” An adjournment should only be considered in circumstances where it could be shown that this was not possible.

The learned judge also drew on the recent guidance provided by the Lord Chief Justice (detailed below) to support this position: “… given the fact that this trial has been scheduled to take place, given the circumstances, given the guidance from the Lord Chief Justice that if at all possible there should be a remote hearing, what can there possibly be to object to the parties seeking to co-operate with a view to ensuring that a virtual hearing can take place.”

Whilst the continuation or adjournment of each case will be decided on its own facts and whilst the Business and Property Courts have  issued their own protocol for remote hearings, the National Bank of Kazakhstan case is a complex case with overseas witnesses in multiple jurisdictions. It is therefore clear that the court will contemplate virtual trials in a range of hearings.

 

Final Comment

The court’s decision does not necessarily rule out adjournments but reflects that the default position is that adjournment should be prevented when possible and that parties should seek compromises in order to proceed with a virtual trial. The courts are, in other words, encouraging ‘business as normal.’ The decision also underscores the need for parties in complex litigation to have the resources and skills to put forward innovative solutions.

The trial started on Thursday 26 March. The Coronavirus Act 2020 now makes live streaming from the Commercial Court a possibility, and a live stream was made possible for the first day of the trial, streaming the virtual trial to the parties and a small number of others and via a screen in the court room to ensure compliance with public access requirements of the UK courts. Further, given the restrictions on non-essential travel, daily transcripts of the trial are also being posted on our website and can be accessed here https://www.stewartslaw.com/fl-2018-000007 .  In addition, as a result of yesterday’s change in legislation, a publically accessible livestream over the internet is also being arranged and is expected to be effective in time for the start of hearing day on Friday 27 March 2020

 


 

Livestream and Transcripts

For both the livestream link starting 27 March and the daily court transcripts please visit our case page here:

National Bank of Kazakhstan & The Republic of Kazakhstan v The Bank of New York Mellon & Ors

 


 

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