In a recent case, the High Court has rejected a party’s application to adjourn a five-week trial that is due to commence in June this year, where that would have meant a year’s delay before the trial could be held: In the matter of One Blackfriars Ltd  EWHC 845 (Ch).
The decision underlines the courts’ determination to continue to hear cases where it is possible to do so safely and fairly through the use of technology. The fact that a case involves significant sums, a lengthy trial and multiple witnesses will not necessarily prevent the court deciding to hold the trial remotely.
It was relevant, in this case, that there were large numbers of contemporaneous documents dealing with the relevant events, and there were no allegations of dishonesty or fraud. Although each case will turn on its facts, and the judge in each case will have a broad discretion as to how to proceed, a remote trial may be considered less suitable where there are such allegations, or where there are few contemporaneous documents such that everything turns on the oral evidence.
At the pre-trial review of their £250 million claim against the former administrators of One Blackfriars Limited, the joint liquidators of the company applied to adjourn the five-week trial of the action, which was due to begin in June this year. The trial is to involve four live witnesses of fact and 13 expert witnesses. If the adjournment was granted, the trial could not be heard before June 2021.
The joint liquidators argued that the adjournment was a necessary response to the restrictions introduced by the government to deal with the COVID-19 pandemic. The former administrators opposed the application, arguing that an adjournment was neither necessary nor appropriate.
The court (Mr John Kimbell QC sitting as a Deputy High Court Judge) refused the application to adjourn and ordered the parties to co-operate to explore ways in which a remote trial, involving an internet-based video communication platform and an electronic trial bundle, might proceed. He also ordered that the practical arrangements for any such trial be reviewed at a second pre-trial review, which is fixed for 21 April.
The deputy judge rejected the joint liquidators’ submission that to proceed with the trial would be inconsistent with the Prime Minister’s instruction to the UK population on 23 March 2020 to stay at home save for very limited purposes, as supported by the Coronavirus Act 2020 and related regulations. His reasoning included:
- The Coronavirus Act makes specific provision for the conduct of remote hearings using video and audio technology, and therefore is a strong indication that the legislature intends the work of the civil courts to continue with the aid of such technology.
- The same is true of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which include attending court and participating in legal proceedings as exceptions to the general ban on leaving home or gathering in a public place.
- There has been various guidance from the courts and senior judiciary, all of which has sent 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 deputy judge also rejected the joint liquidators’ submission that the trial could not proceed without an unacceptable risk to health and safety. The judge acknowledged that a remote trial must not endanger the health of any participants, or anyone else involved in the trial behind the scenes. He noted that some of those expected to participate in the trial fell into the category of vulnerable person, as defined in the Coronavirus Regulations, and two of the expert witnesses had caring responsibilities and so might struggle to participate in a trial.
These matters were “highly relevant to the court’s case management powers” but did not justify a wholesale adjournment of the trial, including because the trial was not due to start until June and much could change in that time, and because there was very little concrete evidence of the particular difficulties or how they might be mitigated. If one or more experts were not able to participate, he said he would expect the parties to co-operate with proposals as to how issues could be tried without their involvement – noting that the evidence of the expert witnesses in question went largely to issues of quantum rather than liability.
As for the submission that there was no tried and tested technology which could deliver a fully remote trial, the judge noted that since mid-March there have been at least two examples of fully remote trials taking place. Although these had been on a “somewhat smaller scale” than the remote trial envisaged in this case, the court’s experience to date suggested that remote trials could be successful even when the proceedings involve multiple parties and witnesses. He was therefore not satisfied that the technological challenges were so great as to make it appropriate to adjourn the trial now, although co-operation and planning would be essential. He commented that he would expect any proposed system to be subject to robust testing from as many as possible of the locations from which individuals would participate, to ensure adequate video and audio quality and that documents could be displayed quickly.
In terms of the practicalities, the deputy judge noted that it would be necessary to ensure adequate broadband connection and bandwith, as there could be 17 people trying to log in to the remote trial using their own domestic broadband. This, he said, could be reviewed at the next pre-trial review, but his current view was that it might be preferable for witnesses to travel to a few locations as close as possible to their home, such as solicitors’ offices or other premises, with dedicated servers and IT staff on hand, rather than to dial in from home without any assistance. He would also expect to hear from the parties on other practical arrangements, such as whether it would be wiser to reduce the scope of the trial by, for example, trying the liability issues first.
Finally, the deputy judge rejected the submission that there was a real risk of unfairness in conducting a remote trial of the claim. The challenges and upsides of proceeding with a remote trial would apply to both sides equally.
Taking into account the overriding objective, and considering factors such as the sums involved, the importance of the case and the financial position of the parties, it was not appropriate to delay the trial until 2021. It was also relevant that most of the relevant matters were likely to be set out in contemporaneous documents, and there were no allegations of dishonesty or fraud. So while both sides must have the opportunity to put the contemporaneous documents to the witnesses, it was not “a case in which it can be said that it is essential to have the witness, the cross-examiner and the judge and the other participants in the same physical space”.