One Blackfriars Limited: a presumption in favour of remote civil hearings?
The number of cases being heard in the civil courts has been of concern to all those working in the legal profession. Those pursuing court cases already face lengthy delays, and whilst there are some courts and judges have enthusiastically embraced remote hearings, this has not been universal. A recent case clarified some of the points to be considered when determining whether remote hearings should go ahead. This case relates to a very high value claim with numerous people involved, but there is no reason why the principles could not apply to all cases.
On 1st April 2020 Mr. John Kimbell, Q.C. sitting in the High Court dealt with an application which relates to One Blackfriars Ltd., the previous developer of the high-profile tower ( EWHC 845 (Ch)). The claim is brought by the company’s Joint Liquidators against its Former Administrators for alleged mishandling of the administration. It is valued at over £250 million, with heads of loss including the sale of the tower at an undervalue and the possibility that a corporate rescue could have been achieved but for the breaches of duty. A five-week trial is due to begin in the week commencing 8th June. It will involve four live witnesses of fact and thirteen experts.
At the pre-trial review on 1st April the Joint Liquidators applied for an adjournment under CPR 3.1(2)(b) on the following bases:
a) To proceed with the trial would be inconsistent with the Prime Minister's instruction to stay at home except for very limited purposes, issued on 23 March 2020, and more commonly referred to as the ‘Lockdown’;
b) The trial could not proceed without exposing participants and others working behind the scenes to an unacceptable risk to their health and safety;
c) The technological challenge posed by a five-week trial was too great. Such technology as existed was untested; and
d) There was a real risk of unfairness or potential unfairness in conducting a remote trial of the claim. Sections 53–56 of the Coronavirus Act 2020, which came into force on 25th March, expand the use of live links in criminal proceedings and provide for public participation in remote civil proceedings.
It was submitted on behalf of the Former Administrators that this Act gave a strong indication the legislature intended the civil courts to work remotely. Regulations 6 and 7 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which came into force on 26th March, qualify their restrictions where there is a requirement to fulfil a legal obligation or participate in legal proceedings. The judge thought it “very clear that by making specific exemptions in this way to the two major restrictions on gatherings and on movement, for the benefit of court proceedings, the legislature is sending a very clear message that it expects the courts to continue to function so far as they [sic] able to do safely by means of the increased use of technology to facilitate remote trials”. He referred to the new Practice Direction 51Y, the Remote Hearings Protocol and Judicial Office guidance.
His conclusion, reached with “no hesitation whatsoever”, was that to proceed with a remote trial was consistent with the ‘Lockdown’. The guidance revealed a “clear and consistent message” that “as many hearings as possible should continue and they should do so remotely as long as that can be done safely”. The use of video technology and electronic document handling software, far from being inconsistent with the Government guidance, is precisely what it envisages.
The judge rejected the health and safety submission, noting that the situation is very fast-moving and that there was plenty of time prior to trial for preparation to be undertaken safely. The court had very little concrete evidence of the particular difficulties any participants may have but, if immovable obstacles did exist, it would expect the parties to co-operate and propose ways of avoiding those witness’ involvement. The judge considered this to be a necessary part of the flexible case management envisaged by the Remote Hearing Protocol.
On the question of technology, the judge considered the remote trials to-date and accepted that all were on a rather smaller scale. He was not satisfied, however, that the inevitable technological challenges were so great as to make it appropriate to adjourn.
Finally, the court considered that the challenges and upsides of a remote trial would apply to both sides equally. The parties were well-resourced and sophisticated. Both had excellent legal teams and there was an equality of arms.
For all those reasons, the judge refused the application to adjourn and ordered that trial preparation continue. That would include co-operation from the parties in exploring how a fully remote trial could take place safely in accordance with the legislation and guidance. The thrust of his judgment comes very close to establishing a presumption that hearings can take place remotely. Given the scope of the trial envisaged here it seems that practical arguments against remote trial, in the absence of case-specific or witness-specific difficulties, will struggle.
Co-operation and planning is clearly essential if a remote trial is to succeed and must include consideration of the bandwidth available at witness’ locations. The judge’s preference was for witnesses to travel to locations equipped with a high-quality video link to give evidence rather than dialling in from home. He is clear that the Regulations permit witnesses to do so, counsel to do so to make submissions, and even an employee of a remote trial service provider to travel to any location (including a witness’ home) to assist with the set-up and oversight of technology.
The present dearth of civil listings is deeply problematic not only for the interests of justice in achieving the timely resolution of cases but also for all branches of the legal profession. The case backlog was deplorable before the pandemic and is worsening by the day. Practicality is essential and it seems that creative solutions will be welcomed by the courts: parties and lawyers should not shy away from taking the initiative.
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