Update: Extensions of time and remote hearings in light of COVID-19

The applicable principles and guidance in relation to applications for extensions of time, which may result in the vacation of a hearing date in circumstances arising from the COVID-19 pandemic, and whether a hearing should be adjourned if a case cannot be heard in person or whether a remote hearing should take place instead, have been helpfully set out in a recent High Court judgment (Muncipio De Mariana & Others v BHP Group PLC [2020] EWHC 928 (TCC)).

Background

The Defendants made an application for an extension of time (the Current Application) of several weeks to serve evidence in reply in respect of an application they had made to stay the proceedings on jurisdictional grounds (the Jurisdiction Application), which had a hearing date of 8 June 2020.

The court started by emphasising the overriding objective under the Civil Procedure Rules, and the requirements that cases must be dealt with justly, proportionately, expeditiously and fairly.  It noted that, in the current circumstances, regard must also be had to Practice Direction 51ZA, which requires the court to consider the impact of COVID-19 so far as compatible with the proper administration of justice.  The court then went on to consider the Current Application in two stages:

1. Should an extension of time be granted for the gathering and service of evidence?
2. Should the hearing be adjourned if the case could not be heard face-to-face, or should there be a remote hearing?

Extensions of Time

The court identified the following principles to be applied:

• If achievable, existing deadlines must be kept; where that is not possible, the minimum extension of time that is realistically practicable should be permitted.
• The prompt administration of justice and compliance with court orders remain of great importance.
• Legal professionals will be expected to make appropriate use of modern technology.
• There are real difficulties caused by the pandemic, but the court will expect and require lawyers: to have a degree of readiness to put up with inconvenience; to use imaginative and innovative methods of working; and to acquire new skills needed for remote technology.
• The approach required of lawyers can also be expected from professional expert witnesses. However, different considerations are likely to apply in relation to private individuals.
• The courts should be willing to accept evidence and other material which is less polished than would otherwise be required, if necessary to achieve the timely production of the material.
• Care must be taken to avoid requiring compliance with deadlines, which are not achievable even with proper effort.
• The court must be mindful 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 would be possible by traditional methods, and to have regard to the consequences of the restrictions on movement.

These factors should then 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 an extension of time which does not have that effect.

Adjournment of Hearing or Remote Hearing

The following principles should be applied to determine whether a hearing should be adjourned if a case cannot be heard in person, or whether a remote hearing should take place instead:

• The court must have regard to the importance of the continued administration of justice.
• It is to be recognised that disputes can be resolved fairly by way of remote hearings and the court must be prepared to hold remote hearings in circumstances where this would have been inconceivable only weeks ago.
• The ways in which a remote hearing could achieve a just determination must be examined before the court accepts that this cannot be achieved.
• The conclusion will be case-specific and many factors will come into play, including the extent to which live evidence and cross-examination are necessary.

Decision

The Defendants originally sought a 7-week extension; however, they conceded prior to the hearing that an extension of 5 to 6 weeks was sufficient.  The court granted this shorter extension, holding:

“the Defendants have shown that in the current circumstances that even when all proper allowance is made for the use of technology and for the making of extra efforts the exercise of preparing the reply evidence will take significantly longer than was provided for in the timetable laid down in September last year. The points made by the Defendants as to the difficulties of remote working and the scale of the task to be undertaken are compelling in the circumstances here.”  

The court was satisfied that justice required the extension, notwithstanding that this would result in the 8 June 2020 hearing having to be vacated.

The Claimants sought a new hearing date in July, while the Defendants contended that the hearing should take place in the Autumn because there would be a greater chance of travel being permitted between the UK and Australia (where the seventh Defendant and its lawyers were based).  However, the hearing would not involve any live evidence; only judicial reading of the material and subsequent oral submissions and argument.  The court found that the Jurisdiction Application was clearly “capable of being fairly determined in a remote hearing…A delay of a further period of three to four months is undesirable and is to be avoided if possible.”  

The court considered that the detriment to the seventh Defendant caused by the difficulties with a remote hearing would be modest and did not justify a further delay.  Accordingly, the hearing was re-listed for 20 July 2020, with a longer time estimate and greater pre-reading time, to take account of the fact that hearing the Jurisdiction Application remotely might take more time.