The English Commercial Court recently gave permission for the go ahead of a virtual trial in the case of National Bank of Kazakhstan & Another v The Bank of New York Mellon & Ors on which we were acting. Since that hearing, there has been another case that further supports remote hearings, with court business set to continue as usual as far as is possible.
A recent webinar we ran around the set up and challenges we faced when organising a fully remote trial at short notice, can be found here.
Subsequent to the webinar and shortly after the publication of the above, we became aware of the judgment of HHJ Eyre QC in Muncipio De Mariana & Ors –v- BHP Group Plc  EWHC 928 (TCC) which is particularly relevant to virtual hearings and worth highlighting.
In Muncipio De Mariana, HHJ Eyre QC sent a clear message to all lawyers that the courts would continue its work as far as is possible, stating:
“As I have already noted metaphors may not be particularly helpful but the court can expect those involved to roll up their sleeves or to go the extra mile to address the problems encountered in the current circumstances. It is not enough for those involved simply to throw up their hands and to say that because there are difficulties deadlines cannot be kept.” (see paragraph 32(iii) of the judgment).
HHJ Eyre QC stated that the various IT and general issues (e.g. having no dedicated staff to assist in situ, no access to hard copy library and having to care for loved ones) which the expert witnesses in that case were experiencing were real and genuinely perceived as difficulties but nonetheless they were not impossible to solve.
This approach broadly accords with our suggestion that there will only ever be a very limited number of factors which might sway a judge to adjourn a hearing as a result of Covid-19. It remains our view that for disputes involving significant disputes of fact, perhaps involving serious allegations of fraud and dishonesty, a virtual trial might not be the best option if there is sufficient and justified concern about the ability to control the environment of the witnesses. But again, these issues are not insurmountable and with careful planning should be capable of being addresses to the satisfaction of all parties and the court.
The judgment quite helpfully provides a summary of the principles to be applied during the Covid-19 pandemic relating to (i) adjournments (see paragraph 24 of the judgment); and (ii) applications for an extension of time (paragraph 32 of the judgment). By way of a brief summary:
With regard to adjournments:
- The continued administration of justice is important.
- Remote hearings can provide for fair resolution of disputes and should be considered carefully as an option.
- Courts may be prepared to hold hearings remotely in previously inconceivable circumstances.
- Decisions as to whether a fair resolution can be achieved are case specific.
With regard to extensions of time, practitioners should have regard to the overriding objective, paragraph 4 of PD51ZA and the following:
- The main objective is to keep the existing deadlines with short extensions to be considered if absolutely necessary.
- Lawyers are expected to “roll up their sleeves or to go the extra mile” and to make appropriate use of modern technology. Similar is expected from expert witnesses who are themselves professionals.
- The court should make allowance and accept evidence which is rather less polished and focused than it would have been otherwise.
- That said, the court must take account of the realities and not seek to enforce unachievable deadlines. It is likely that it may take parties longer to achieve particular results in the current circumstances than it would have otherwise.
- The position remains that it would be much harder to persuade the court to grant extensions which might result in the loss of a trial date than extensions that do not have the same effect.
We partnered with Lexology to share practical advice following our experience of running the first virtual trial in the Commercial Court by webinar.
To view a recording of the webinar, please click here. The webinar is free to view but standard registration details are required.
The slides can be viewed here
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