COVID-19 and remote trials

David Halpern QC |

The first judgment has now been reported on the effect of COVID-19 on a forthcoming trial.  In Re One Blackfriars Ltd, Hyde v. Nygate [2020] EWHC 845(Ch), John Kimbell QC, sitting as a Deputy High Court judge, refused to adjourn a trial due to start in June but ruled that it should proceed remotely by video-link.

The ruling is significant because it concerns litigation on a large scale.  The claim is for damages of some £250m arising from alleged negligence in the conduct of the administration of a company.  The trial is due to last 5 weeks; there are some 9,000 documents and there will be live evidence from 4 witnesses of fact and 13 experts.  If the trial were adjourned, it would not be relisted in the Chancery Division before June 2021.  The clear message is that, if a trial of this size can proceed on-line, there are unlikely to be many trials which will need to be adjourned on the ground that they cannot take place as face-to-face trials.

 

The grounds for the decision

The claimants applied to adjourn on four grounds, all of which were successfully opposed by Justin Fenwick QC and Ben Smiley of 4 New Square on behalf of the defendants.

  • Alleged inconsistency with the Lockdown: The Judge held that the Coronavirus Act 2020 sections 53-56 and Schedule 25, in making express provisions for on-line trials, gave a strong indication that the Government expected the work of the civil courts to continue. The same message clearly emerged from the Coronavirus Regulations (SI 2020/350, “the Regulations”) and from the Protocols and Practice Directions issued by the courts. As the Judge said: “The message is that as many hearings as possible should continue and they should do so remotely as long as that can be done safely.”
  • Alleged risk to safety: If the trial would have endangered the health or safety of any participants (or of any third persons who were dependent on them), this would potentially have been a valid ground for adjournment.  However, although some of the participants were “vulnerable” (as defined in the Regulations), there was very little concrete evidence of any practical difficulties that they would face in participating in a remote trial.  The situation regarding the Lockdown and the spread of COVID-19 was fast-moving and, with sufficient cooperation between the parties, there was no need for an adjournment on safety grounds.
  • The technological challenge: Reference was made to two trials which have so far taken place fully remotely.  Although both were on a smaller scale, the Judge saw no reason why the technology should not work for a trial of this magnitude.
  • Alleged unfairness: The difficulties will be the same for both sides and hence there was no unfairness to one side in refusing an adjournment. On the contrary, it was in accordance with the Overriding Objective not to delay this trial for a further year.

Although this was litigation on a large scale, it was document-heavy and did not involve allegations of fraud.  It is possible that the application to adjourn might have been successful if the case had turned on allegations of dishonesty.

 

Practical implications

We will all need to think through the practical issues which are likely to arise in any on-line trial, including the following:

  • Understanding the features and limitation of the video-link platform and testing it at every location before it is used.
  • Agreeing rules of engagement, e.g. that everyone should mute their audio unless they are speaking, and that interruptions should be strongly discouraged.
  • Care in compiling the e-bundle, e.g. ensuring that the page numbers accord with the PDF numbers (beware of the unpaginated Index at the front of the e-bundle).
  • Ensuring that each witness has adequate facilities, including at least two screens (one for the video-link and one for the e-bundle). If the witness does not have sufficient broadband-width or facilities at home or has difficulties in operating the equipment, this should not be insuperable.  The Regulations permit either an IT specialist to visit the witness’s home or the witness to travel to their solicitor’s office or another place with suitable facilities.
  • Consideration should be given to directions for simplifying the trial, e.g. having a split trial.
  • It may be appropriate to have breaks mid-morning and mid-afternoon, because a remote trial is likely to be more tiring than a face-to-face trial, at least until we all become used to the technology.
  • All of this will require a high degree of cooperation between the parties. The courts are entitled to expect this in accordance with the Overriding Objective and it is likely that they will deal firmly with parties who decline to cooperate without good reason.

© David Halpern QC. This material is not intended for use and must not be relied upon in relation to any particular matter and does not constitute legal advice.  It has been provided without responsibility by its author.

David Halpern QC

April 2020