Virus that has closed down the country should not derail trial

Author – Frances Coulson, Senior Partner, Head of Insolvency & Litigation

Our first real decision about the impact of the COVID-19 pandemic on civil litigation comes in the form of a robust judgment of  John Kimbell QC, sitting as a deputy High Court judge, in Re One Blackfriars Ltd (in liquidation),  Hyde and Anor  (Joint Liquidators of One Blackfriars Limited) v Nygate and Anor [2020] EWHC 845 (Ch).

The reserved judgment deals with an application by the claimant liquidators to adjourn the trial of their claim for some £250m against the former administrators of the company, listed for five weeks in June this year, in the light of the government restrictions imposed as a result of the pandemic. The administrators opposed the application.

Counsel for the liquidators advanced a number of reasons for adjourning: he said that proceeding with the trial would be inconsistent with the government instruction to stay at home; to proceed would expose participants and others to an unacceptable health risks; the technological challenges posed by a five-week trial were too great; and there was a real risk of unfairness or potential unfairness in conducting a remote trial of the claim. Counsel for the administrators submitted that those obstacles could be overcome; and in any event the liquidators’ application was premature: the parties had not yet properly  explored all the  technological options for a remote trial which, in any event, was still ten weeks away.

The judge considered the jurisdiction to adjourn under CPR 3.1(2)(b), noting that it provided a wide discretionary case management power which the court had to exercise in accordance with the overriding objective. He went on to exercise that discretion against adjourning. In his view the relevant provisions of the Coronavirus Act 2020 indicated that the legislature intended the work of the civil courts to continue with greater use of video and audio technology. Whilst safety was a relevant consideration, it did not justify adjourning, given the lack of concrete evidence of particular difficulties affecting the participants and the obligation of the parties to propose ways in which the expert issues could “be tried without the involvement of those particular witnesses.” The deputy judge said that he was not satisfied that the technological challenges were so great as to make it appropriate to adjourn now. Finally, he rejected the contention as to potential unfairness, holding that “the challenges and indeed the upsides of proceeding with a remote trial will apply to both sides equally” in what was “litigation between well-resourced sophisticated parties” supported by “excellent legal teams, [so that] there is an equality of arms.”

Specifically, with regard to the overriding objective, the deputy judge said he had taken into account the sums involved, the importance of the case and the financial position of the parties. Delay in resolving the dispute was, in his view, in neither side’s interest. Relevant also was the fact that virtually every step in this administration was recorded, so the case was heavily dependent on documents. There were no allegations of dishonesty or fraud. “So whilst it is undoubtedly the case that both sides must have the opportunity to put contemporaneous documents to the factual and expert witnesses, it is not, it seems to me, a case in which it can be said that it is essential to have the witness, the cross-examiner and the judge and the other participants in the same physical space”.