In a recent ruling of the English High Court, a judge has set out the principles which the English Courts should apply when considering applications to adjourn hearings and for extensions of time made against the background of the COVID-19 pandemic. The principles provide useful context for parties choosing to litigate in these uncertain times.
In Municipio de Mariana and others v BHP Group plc  EWHC 928 (TCC), the proceedings arose out of the collapse of the Fundao Dam in Brazil in November 2015 and form what is believed to be the biggest class action in English legal history.
The Defendants had made an application to stay the proceedings on jurisdictional grounds which was due to be heard in June 2020. Owing to difficulties obtaining evidence as a result of COVID-19, they applied for a seven-week extension of time to file their evidence in reply and asked for the hearing to be postponed until the autumn. The High Court granted the Defendants a slightly shorter extension than that sought but ruled that the jurisdiction hearing would start on 20 July 2020, albeit with a longer time estimate and greater pre-reading time, recognising that hearing it remotely was likely to take longer than usual.
Principles for Adjournments and Remote Hearings
Having considered unreported decisions in which adjournments of trials were refused and recent practice direction PD 51ZA, His Honour Judge Eyre QC identified the following principles regarding adjournment and remote hearings:
- The continued administration of justice is important – justice delayed is justice denied.
- Disputes can be resolved fairly on a remote basis, and there should be rigorous examination of this option.
- Courts must be prepared to hold hearings remotely in previously inconceivable circumstances.
- Decisions as to whether a fair resolution can be achieved are case-specific.
Principles for Time Extensions
As to time extensions, the Judge set out the following principles:
- Existing deadlines should be met, where possible.
- Legal professionals will be expected to make appropriate use of modern technology, and lawyers and experts to go further than in normal circumstances (putting up with inconveniences and using imaginative, innovative working methods).
- The court may be willing to accept evidence and other material which is less polished and focused.
- The court will avoid requiring compliance with deadlines which are unachievable, even with proper effort.
- It is recognised that things take longer via remote working.
- Extensions resulting in loss of a trial date will be granted much less readily than extensions which do not.
These principles are a helpful guide as to what the Courts should expect of parties choosing to litigate in these uncertain times of pandemic. The message is clearly that, whilst it is no longer exactly business as usual, the parties and their representatives will need to go to appropriate lengths to ensure that the Courts can continue to deliver justice.
As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.