Extensions of time and adjournment during COVID-19: Muncipio De Mariana & Ors v BHP Group Plc and BHP Group Ltd  EWHC 928 (TCC) (20 April 2020)
There is now a growing body of case law concerning applications for adjournments and extensions of time during the COVID-19 pandemic. In this decision, HHJ Eyre QC has provided a helpful summary of the relevant principles governing such applications and the practical considerations which parties and practitioners should bear in mind.
The underlying proceedings concerned the collapse of the Fundão Dam in Brazil on 5 November 2015 and the resulting contamination and damage caused to the Doce River. The Claimants number more than 200,000 individuals, as well as businesses, churches, utility entities and others. It has previously been described by the Claimants as the largest class action ever brought in England.
Alongside the proceedings in England and Wales, which were issued in November 2018, litigation has also commenced in Brazil. The Defendants applied to stay the English proceedings on jurisdictional grounds, for which application HHJ Eyre QC gave directions in September 2019. Those directions included provision for the Defendants’ reply evidence to be served by 17 April 2020 (which was subsequently extended by consent to 1 May 2020) and a four-day hearing of the application commencing 9 June 2020.
At this hearing the Defendants sought an extension of time by five to six weeks for the service of their reply evidence and a consequent adjournment of the hearing, either to July 2020 or the Autumn. The Defendants argued that the latter would be preferable because by then it may be possible to conduct the hearing in person. The Defendants’ grounds for seeking the extension of time were as follows:
- The Claimants’ evidence had been served just hours before Brasilia had gone into lockdown on 14 March 2020, and entry of non-Brazilian travellers from the UK into Brazil was subsequently prohibited from 23 March 2020. The Defendants had served witness statements and expert reports from several Brazilian lawyers and others, and argued that remote working would take much longer bearing in mind the quantity of evidence involved.
- Two of the Defendants’ experts had particular difficulties in this period. Justice Rezek, a former justice of the Brazilian Supreme Court, was stuck in Brasilia and unable to access his library or staff in Sao Paulo, without whose assistance he was unused to working. Another legal expert had to support his vulnerable parents and his wife, and had only a poor home internet connection.
- The period of extension sought by the Defendants was the result of a careful assessment. Furthermore, the Claimants had themselves obtained an extension by consent during the Christmas, New Year and Carnival holidays in Brazil and the Minas Gerais flooding.
The Claimants accepted that a small extension would be required but submitted that the Defendants had exaggerated the difficulties involved in remote working. They also argued that reply evidence should generally be more limited than the first wave, in particular referring to judicial warnings against jurisdiction disputes being allowed to get out of hand.
Extension of time during the pandemic
Referring to the overriding objective, paragraph 4 of the new PD51ZA, and the Lord Chief Justice’s guidance on 19 March 2020, the Judge set out the following principles by which applications for the extension of time during the COVID-19 pandemic should be determined:
- Wherever possible, existing deadlines should be kept; and where that is not realistically possible, the objective is to “permit the minimum extension of time which is realistically practicable”.
- Legal professionals are expected to familiarise themselves with and appropriately use remote technology where they can.
- They should also be prepared to “go further than they might otherwise be expected to go in normal circumstances and particularly…where there is a deadline to be met”. This includes the use of “imaginative and innovative methods of working”.
- This approach is to be expected also from expert witnesses who are themselves professionals, but not necessarily of persons who are private individuals.
- The courts should accept evidence and other materials which is “rather less polished and focused” to achieve timely production.
- However, the courts must also accept that compliance with deadlines may not be achievable even with proper effort.
- The courts must be aware that remote working is likely to take longer and require more work to achieve a particular result, particularly where the case involves large quantities of documents and interpreters.
- The courts must also take note where remote dealings cannot be conducted between sets of well-equipped offices with fast internet connections and IT support staff, but are rather from “a number of different locations with varying amounts of space; varying qualities of internet connection”, and take account of the fact that those working from home may have to care for sick family members.
- It remains the position that an extension of time requiring the loss of a trial date is much more significant and will be granted much less readily than where this is not the case. Where it is the case, the court “must be confident that there is no alternative which is compatible with dealing fairly with the case”.
Taking account of these factors, the Judge granted the Defendants’ application for an extension of time and resulting adjournment of the application hearing, determining that the exercise of preparing all of the reply evidence would take “significantly longer than was provided for in the timetable laid down in September last year”. In this case, the difficulties raised by the Defendants with remote working and the scale of the task were “compelling in the circumstances”.
The Judge referred to the case of Heineken Supply Chain v Anheuser-Busch Inbev  EWHC 892 (Pat), in which Daniel Alexander QC sitting as a deputy High Court Judge had refused an extension of time of a length which would necessitate the adjournment of the trial. The deputy judge stated in that case at  that “I also bear in mind that the nature of the proposed expert evidence is such that what may be lost in polish as a result of having fewer hours devoted to it by lawyers may be gained in raw authenticity, as well as the fact that a more limited time encourages confining the evidence to that which is truly essential.”
HHJ Eyre QC made clear at  that these words are not to be taken as having general application. Although it may sometimes be the case that evidence will be shorter, more relevant or authentic when less time is spent on it, in many instances the converse is the case. Clearly, the effect of time constraints on the quality of the evidence will have to be judged on a case-by-case basis.
Adjournment of the trial or remote hearing
Dealing then with the appropriate length of the adjournment, the Judge referred to three successive cases in which the court had refused applications to adjourn trials and instead ordered that they be conducted remotely: National Bank of Kazakhstan v Bank of New York Mellon (unreported), a decision of Teare J in the High Court; Re Smith Technologies (unreported), a decision of ICC Judge Jones, and Re Blackfriars Ltd  EWHC 845 (Ch).
The Judge summarised the applicable principles as to when a case ought to be adjourned or conducted remotely:
- Regard must be had to the importance of continuing the administration of justice;
- The extent to which disputes can be resolved fairly in remote hearings should be considered;
- The courts must be prepared to hold remote hearings where this would recently have been inconceivable;
- The courts should rigorously examine how a remote hearing could be conducted in a way consistent with justice;
- The fairness of a remote hearing will be case-specific. Relevant factors include whether and to what extent live evidence and cross-examination will be necessary.
Taking these into account, the Judge rejected the Defendants’ submission that the hearing ought to be pushed back to Autumn 2020 in the hope that, by then, an in-person hearing may be possible. The Judge noted that there would be no live evidence, the determination of the jurisdiction issue would involve substantial judicial reading, including of written submissions, and there was no guarantee that an in-person hearing would be possible even in the Autumn. The Judge rejected the importance placed by the Defendants on the fact that the Australian lawyers for the Seventh Defendant would not be able to hear the proceedings and discuss them with those conducting the hearing, since such conversations would be “predominantly concerned with matters of tactics and argument rather than of settlement or of change of approach”.
Accordingly, the Judge re-listed the hearing to 20 July 2020 and ordered that it be conducted remotely.
It is clear from this decision, and the line of cases referred to, that the senior courts are striving to conduct hearings remotely where feasible and are tending to reject arguments for blanket adjournments. The implications for the fairness of a trial or hearing are inevitably case-specific. However, one factor which will generally be relevant is the need for and extent of any live witness evidence and cross-examination. It is also clear that the courts are taking a case-specific and somewhat more varied approach to applications to extend time for procedural deadlines, including service of evidence, even where trials may need to be adjourned as a result. Such adjournments are likely to be more time-limited where the Court concludes that a remote hearing is appropriate.
Written by Joshua Brown.