Philippe Kuhn
Year of call: 2017
News
Remote hearings and adjournment applications in the Business and Property Courts: Emerging Trends
English courts have long led the way in handling complex international commercial disputes. The specialist courts which are now known as the Business and Property Courts of England and Wales have time and again demonstrated their institutional capacity and willingness to adapt to the realities of modern commerce. The ongoing crisis precipitated by Covid-19 is no different. In recent weeks, the courts have embraced innovation to meet the challenges posed by remote working and have defied the odds to keep proceeding with a number of complex matters with minimal disruption.
Case management issues have been considered in a number of recent adjournment applications. These decisions provide valuable guidance on issues of safety, technological measures, procedural fairness and open justice. Importantly, these decisions demonstrate that English courts can be expected to maintain their pragmatic and fact-sensitive approach when dealing with applications for adjournment and other ancillary matters. As such, special adjustments for witnesses and experts in other jurisdictions and the needs of international clients are likely to be accommodated in the spirit of fairness.
We set out below a few guiding principles which may be gleaned from the courts' approach to case management.
(1) Practice Directions, "Remote Hearing Protocol" and HMCTS guidance:
By way of background, it is to be noted that the senior judiciary and HMCTS have been active in providing a fleet of new Practice Directions, the "Remote Hearing Protocol" and other guidance. These are by now familiar, but they are general in nature. Commercial and construction litigation is complex and varied, in particular given the high proportion of foreign litigants in the English courts. This means there is necessarily room for fact-sensitive evaluations by experienced judges deciding adjournment applications and wider case management questions relating to remote hearings.
To provide a flavour of current reference materials:
- Practice Directions: In late March and early April, Practice Direction 51Y[1] and Practice Direction 51Z[2] were introduced. The former deals with open justice issues. The latter provides helpful guidance on extensions of time, allowing parties to agree in writing to extensions of 56 days without the permission of the court.
- "Remote Hearing Protocol": The 'Civil Justice in England and Wales Protocol regarding Remote Hearings'[3] deals with expected steps, including (1) the main options available for remote hearings, with a non-exhaustive list of teleconference and video link services (para 13), (2) the respective roles of the courts and the parties in making alternative proposals (paras 16-17) and (3) the conduct of remote hearings (paras 20-23).
- HMCTS guidance: HMCTS and individual courts have produced guidance in several forms. The key consolidated guidance is 'HMCTS telephone and video hearings during coronavirus outbreak'.[4] This deals with the full range of remote hearing questions, including the decision to use alternative arrangements, applicable court rules and PDs, open justice and listing information.
The Business and Property Courts have provided more tailored guidance on applicable case management principles in recent adjournment applications. Given the range of factors referred to, it is most convenient to take the cases chronologically.
The first major judgment was by Teare J in National Bank of Kazakhstan v Bank of New York Mellon (unreported, 19 March 2020). While the decision on the adjournment application is unavailable, it was later cited and reproduced in part in Re One Blackfriars Ltd (in liquidation) [2020] EWHC 845 (Ch) at [33] (discussed below).
Teare J stressed that the "default position now in all jurisdictions must be that a hearing should be conducted with one, more than one, or all participants attending remotely". He used the strong language "it is incumbent on the parties to seek to arrange a remote hearing if at all possible", despite accepting that "the geographical location of the expert witnesses" poses "particular challenges". He thus refused the adjournment application. The matter was heard within days and the trial judgment has been handed down: [2020] EWHC 916 (Comm).
Similarly, on 26 March 2020, Insolvency and Companies Court Judge Jones rejected an adjournment application in Re Smith Technologies. That judgment is unreported but was cited with approval in Muncipio De Mariana v BHP Group Plc [2020] EWHC 928 (TCC) at [21]. The judge gave short shrift to arguments about (1) the ability of the respondents to give and receive instructions because of the different locations of counsel, solicitors and clients, (2) self-isolation by one of the respondents (falling within a vulnerable category) and (3) the quality of internet connections. Commenting on technological difficulties, the court said at [8]:
"It has been contended that the legal team for the respondents has no previous experience and there is insufficient time to learn to be able to participate fully and fairly. Bluntly, that is not good enough. Solicitors are going to have to act quickly. They need to practise Skype and put in place procedures to enable them to be effective trial lawyers. I have to observe that it is highly surprising that the technology available to a firm of solicitors is not more advanced than that available to the courts, but again I return to the fact that this is not difficult technology. Nor should it be difficult to organise an electronically presented defence."
The court also considered that (1) "instructions can be taken without anyone hearing them during the trial, using mute on Skype and mobile phones, either directly or through apps", (2) short-term arrangements can be made to address internet connectivity issues and (3) there is scope for flexible timetabling to allow for family difficulties or space problems (see at [7], [12]-[13]). In addition, the need for co-operation between the parties and the willingness of the court to provide further case management directions where needed was pointed out (see at [13]).
A very comprehensive treatment of remote hearing case management issues is found in Re One Blackfriars Ltd [2020] EWHC 845 (Ch) (6 April 2020). John Kimbell QC (sitting as a Deputy High Court Judge) dismissed an application to adjourn the trial. He dealt with (1) consistency with the Government's instructions pursuant to the Coronavirus Act and the Coronavirus Regulations, (2) safety concerns, (3) technological challenges and (4) potential unfairness. The parallels to Teare J's refusal of an adjournment in National Bank of Kazakhstan are notable.
In summary, the court emphasised the following factors:
- The Coronavirus legislation made "specific exemptions" for court proceedings, which sends "a very clear message that [Parliament] expects the courts to continue to function so far as they able to do safely by means of the increased use of technology to facilitate remote trials". (See at [23])
- "A remote trial must not endanger the health of any participants or, indeed, anyone else involved in the trial behind the scenes". The particular issues raised were that some trial participants were in the vulnerable category and that two of the expert witnesses had caring responsibilities within their households. However, these concerns were considered insufficient for an adjournment. Principally on the basis that there had to be more concrete evidence of difficulties and there was a real need for co-operation between the parties, including the possibility of dispensing with certain evidence. The judge left open the possibility of revisiting that determination at a further PTR. (See at [38]-[39])
- There was little sympathy for technological issues. A number of remote trials had taken place, including before Teare J in the Commercial Court. The experience so far was that remote trials have been successful even when the proceedings involved multiple parties and in excess of ten witnesses. The parties were ordered to "co-operate in seeking potential remote trial platforms and document handling systems". Any proposed system should be "subject to robust testing from as many of the locations from which participants are likely to be giving evidence (or making submissions)" as possible and "careful attention must be paid to the Internet bandwidth available" at all locations. Internet connection and bandwidth were considered "an absolutely essential enquiry" and, as a preliminary view, "it may well be preferable for witnesses to travel to a few locations as close as possible to their home". (See at [46], [49]-[51])
- Unfairness was not a major issue where litigation is "between well-resourced sophisticated parties", both have "excellent teams" and there is thus "an equality of arms".[5] (See at [53])
The latter comment met with criticism in Muncipio De Mariana v BHP Group Plc [2020] EWHC 928 (TCC) (20 April 2020). HHJ Eyre QC considered an application for extending time for filing of evidence which, if granted, would result in the vacation of a 7-day jurisdiction application. Significantly, the application was granted. However, the facts were quite extreme. The applicants' Brazilian law expert was a 76-year old retired Brazilian judge with limited IT skills based in Brasilia, without access to relevant papers located in Sao Paulo (see at [36]). As to expert evidence, HHJ Eyre QC at [31] expressed doubts over the general comments in Heineken, in particular "the assumption that as a general rule if less time is spent on material or if there is less involvement by the lawyers the evidence will be shorter or will have more relevance or authenticity." Further, HHJ Eyre QC at [24] distilled five principles from the authorities:
"i) Regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances.
ii) There is to be a recognition of the extent to which disputes can in fact be resolved fairly by way of remote hearings.
iii) The courts must be prepared to hold remote hearings in circumstances where such a move would have been inconceivable only a matter of weeks ago.
iv) There is to be rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved consistent with justice before the court should accept that a just determination cannot be achieved in such a hearing.
v) Inevitably the question of whether there can be a fair resolution … by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether and if so to what extent live evidence and cross-examination will be necessary is likely to be important in many cases. There will be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote hearing."
(3) Emerging trends:
The Business and Property Courts are clearly staying true to the "business as usual" mantra. They have given a firm steer to avoid disruptions and gaps in court utilisation by expecting a high level of technological sophistication. This reflects the well-represented and well-resourced nature of most parties.
High expectations for investment and training in improving technology capacity, both for lawyers and to assist witnesses, have been set. A notable example is Re One Blackfriars Ltd. In practice, this would seem to include experimenting and gaining familiarity with a range of video link and teleconference platforms, not limited to the current frontrunners Skype and Zoom. Intermediary firms such as Sparqa and Opus2 provide these kinds of services, and some can even help address open justice concerns by facilitating live streaming of hearings through court listing pages, including from the Rolls Building. A possible exception to the rule may be certain cross-border disputes in which a greater number of relevant participants may be affected more seriously by technological issues or other restrictions not found in the UK.
One factor that could have greater currency as a potential objection to proceeding with trials in current conditions is safety. This is reflected in part by the willingness to hold a further PTR nearer the trial date if necessary in Re One Blackfriars Ltd. However, this will need to be well-substantiated and there is at least some indication that parties may be expected to dispense with non-essential evidence in certain cases.
Similarly, the question of expert evidence is not as clear-cut as suggested in Heineken. Muncipio De Mariana underlines the fact-sensitive nature of such case management decisions and the wide range of potentially relevant considerations. Certainly where experts (or other key witnesses) are likely to be in different time zones, issues of substantive fairness are likely to arise.
Cross-examination of key witnesses in proceedings concerning serious allegations, including alleged fraud, conspiracy and other species of dishonesty, may also raise issues in some cases. Sophisticated commercial parties are already familiar with remote evidence in such disputes, in particular in international arbitration. However, there is as yet no specific guidance on conducting entire civil fraud trials remotely. This is likely to require further judicial attention.
Another area for further reflection is the extent of the courts' willingness to depart from usual timetabling patterns for longer trials, in order to accommodate participants in different time zones. It is to be hoped that the general comment about flexibility in Re Smith Technologies can be extended beyond family difficulties or space problems. Trial lengths may also need to be revisited on account of such adjustments and, in general, the added time involved in giving evidence by video link rather than in person.
[1] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51y-video-or-audio-hearings-during-coronavirus-pandemic.
[2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/practice-direction-51za-extension-of-time-limits-and-clarification-of-practice-direction-51y-coronavirus.
[3] https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-26_03_20-1-1.pdf.
[4] https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak?utm_medium=email&utm_source=.
[5] Another case dealing with questions of unfairness is MillChris Developments Ltd v Waters [2020] 4 WLUK 45 (2 April 2020). Jefford J refused to grant an injunction stopping an adjudication from proceeding. It was submitted that to allow the adjudication to continue would be a breach of natural justice because of the effects of Covid-19, but Jefford J held that only exceptionally would a court grant an injunction to stop an adjudication, and on the facts the test was not met. There was no explanation as to why papers could not be transported or scanned over. The reasons why evidence could not be obtained had nothing to do with Covid-19.
