Administration of justice in a global pandemic

Published: 05/05/2020

A recent decision[1] of the Technology and Construction Court lays out the approach of the Courts of England and Wales to applications for an extension of time to comply with procedural deadlines where such application is based on the impact of Covid-19. It offers a welcome illustration of the Courts striving to uphold the administration of justice in times of a global pandemic and brings into focus a number of the practical and logistical challenges of remote working which the profession is presently grappling with.

The applicants – defendants in a very substantial class action arising from the collapse of the Fundao Dam in Brazil in 2015 – sought an extension of the deadline for service of evidence in the context of their application for a stay of proceedings on jurisdictional grounds. The lengthy extension sought was roughly double the period allowed in the original timetable, which had coincided with the imposition of more restrictive measures in the UK and Brazil (the latter being where the applicants’ factual and expert witnesses are based) in response to the pandemic. If allowed it would result in the adjournment of the jurisdiction hearing, either until the summer or (as the applicants preferred) the autumn of 2020.

The difficulties encountered by the applicants will be familiar to offshore litigants: they included the inability of its lawyers to travel between the UK and Brazil, which necessitated remote meetings, a problem said to be compounded by the sheer volume of documentation and the need for interpreters. One of their experts, a former Brazilian Supreme Court Justice, was in lockdown in Brasilia and therefore separated from his staff (on whom he relied for computer-related matters) and library in Sao Paulo, where he lived. Another was required to devote considerable time to supporting his vulnerable parents as well as attending to crisis management issues at his law firm. He did not have access to his office and was experiencing issues of slow or intermittent internet connection. The applicants stressed that the extension of time sought was the result of a careful assessment of the prevailing situation.

The claimants accepted that some further time was required by the applicants in consequence of the pandemic but argued for a much shorter period. Among other points they argued that the difficulties relied upon by the applicants (in particular the technological issues) had been exaggerated, pointing to historic social media postings by one expert and the online lectures currently being delivered by another.

The judge, HHJ Eyre QC, nonetheless proceeded on the basis that the problems experienced by the applicants’ witnesses were real and were genuinely perceived as posing insuperable difficulties in the circumstances. He granted the extension of time, having identified and applied the following principles:

 

  1. The objective must be to keep to existing deadlines and where that is not realistically possible to allow the minimum extension of time practicable. The prompt administration of justice and compliance with court orders remain of great importance even during a pandemic.
  2. The legal profession is expected to make appropriate use of modern technology and lawyers (along with experts in professional fields) are expected to put up with inconveniences, to use imaginative and innovative methods of working, and to acquire new skills needed for the effective use of remote technology.
  3. The Court should be willing to accept evidence and other material which is “less polished and focused” than would otherwise be required if that is necessary to enable the timely production of the material.
  4. On the other hand, the Court must also take account of the realities of the position and care must be taken to avoid requiring compliance with deadlines which are not achievable even with proper effort. In this regard, the Court must be conscious that it is likely to take longer and require more work to achieve a particular result (such as the production of evidence) by remote working than by more traditional methods. It must also have regard to the consequences of restrictions on movement (and the fact individuals are working from home) taken to address the pandemic. In the present case, remote communications were being conducted from a number of different locations with varying amounts of space, varying qualities of internet connection, and with such IT support as is available being provided remotely.
  5. Those factors are to be considered against the general position that an extension of time which requires the loss of a trial date has much more significance and will be granted much less readily than one where that is not the case.

 

In respect of this latter point, HHJ Eyre QC – following his review of (1) a number of recent English authorities dealing with the impact of the pandemic[2], (2) a temporary Practice Direction issued under the CPR[3], (3) guidance issued by the Lord Chief Justice[4] and (4) the Civil Justice Protocol regarding Remote Hearings[5] – set out a number of principles governing the question of whether a particular hearing should be adjourned if the case cannot be heard face to face or whether instead there should be a remote hearing. These are worth listing:

 

  1. Regard must be had to the administration of justice. Justice delayed is justice denied, even where such delay results from responses to a global pandemic.
  2. There is to be recognition of the extent to which disputes can in fact be resolved fairly by way of remote hearings.
  3. The Courts must be prepared to hold remote hearings in circumstances which would have been inconceivable only weeks ago.
  4. There must be rigorous examination of the prospect of a remote hearing and how it would work before the Court should accept that a just determination is not possible in such a hearing.
  5. The question of whether a fair resolution is possible by way of a remote hearing will be case-specific, with a multiplicity of factors coming into play. The question of whether and to what extent live evidence and cross-examination will be necessary is likely to be a significant factor in many cases.

 

It is anticipated that the Jersey Courts will adopt a like approach to applications of this nature, at least to the extent that its technology permits. Plainly, it will not suffice for a party to cite Covid-19 without more and expect the Court to grant any degree of flexibility. Maintaining the administration of justice is paramount even – or perhaps especially – in these exceptional times.

The specific impact of the pandemic on a party’s ability to meet a procedural deadline ought therefore to be properly demonstrated, and the extension sought should be tailored so that it accords with the time lost as a result of the impact. Applications will be determined by the principles stated and, as ever, the starting point will be the overriding objective to deal with cases justly and at proportionate cost. Active case management has taken on a new dimension with greater focus on the possibilities created by increased and better use of remote technologies.

 

Philip Brown, Associate

 

[1] Muncipio de Mariana and others v BHP Group Plc and others (2020) EWHC 928 (TCC)

[2] Most notably Re Blackfriars Ltd [2020] EWHC 845 (Ch)

[3] See para 4 of Practice Direction 51Z – Extension of Time Limits and Clarification of Practice Direction 51Y – Coronavirus

[4] Coronavirus – Message from the Lord Chief Justice to Judges in the Civil and Family Courts

[5] Civil Justice in England and Wales Protocol regarding Remote Hearings (26 March 2020)

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