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Muncipio De Mariana & Others -v- BHP Group PLC (formerly BHP Billiton) [2020] EWHC 928 (TCC)

Details

In this case the court considered the principles for granting a time extension due to COVID-19 associated delays and the suitability of virtual hearings.

Factual background

The first and seventh defendants applied to stay the current proceedings on jurisdictional grounds.

The proceedings in question arose out of the collapse of the Fundão dam in Brazil in November 2015. The collapse released large quantities of toxic materials and contaminated water. That material entered, ultimately, the Rio Doce, causing harm along the course of that river to the Atlantic Ocean.

The proceedings are the largest class action ever brought in England and of unusual scale and complexity. The damages sought are considerable in amount and for a large range of losses.

The application to stay the proceedings was listed for seven days beginning on 8 June 2020. The timetable provided for the defendants to serve their evidence in reply to the claimants’ evidence by 1 May 2020. The defendants applied for an extension of that deadline to 19 June 2020 in light of the difficulties said to have been caused by the COVID-19 pandemic and by the measures put in place to address it.

The consequence of the  extension would be the vacation of the hearing. The defendants invited the court to list the matter for a hearing either in July 2020 or preferably in the autumn. The claimants resisted an extension of the period sought by the defendants. If the hearing were to be vacated, they resisted the proposal of a hearing in the autumn.

The starting point, as always, was the overriding objective with the requirement that cases are to be dealt with justly; in ways which are proportionate to the amounts involved, the importance of the case, and the complexity of the issues; and expeditiously and fairly.

PD51ZA paragraph 4 provides that in so far as compatible with the proper administration of justice, the court will take into account the impact of the COVID-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions.

Extension of time

As to whether there should be an extension of time for the gathering of evidence because of the effect of the COVID-19 pandemic, the judge noted that the defendants’ application was to be assessed against the following principles:

i) The objective (if achievable) must be to keep to existing deadlines and where that is not realistically possible to permit the minimum extension of time which is realistically practicable.

ii) The court can expect legal professionals to make appropriate use of modern technology.

iii) While recognising the real difficulties caused by the pandemic and by the restrictions imposed, the court can expect legal professionals to seek to rise to that challenge. Lawyers can be expected to go further than they might otherwise be expected to go in normal circumstances and particularly so where there is a deadline to be met (and even more so when failing to meet the deadline will jeopardise a trial date).

iv) The approach which is required of lawyers can also be expected from those expert witnesses who are themselves professionals. However, rather different considerations are likely to apply where the persons who will need to take particular measures are private individuals falling outside those categories.

v) The court should be willing to accept evidence and other material which is rather less polished and focused if that is necessary to achieve the timely production of the material.

vi) However, the court must also take account of the realities of the position and care must be taken to avoid requiring compliance with deadlines that are not achievable even with proper effort.

vii) It is in the light of that preceding factor that the court must be conscious that it is likely to take longer and require more work to achieve a particular result (such as the production of evidence) by remote working than would be possible by more traditional methods.

viii) In the same way the court must have regard to the consequences of the restrictions on movement and the steps by way of working from home which have been taken to address the pandemic. In current circumstances, the remote dealings are not between teams located in two or more sets of well-equipped offices but they are being conducted from a number of different locations with varying amounts of space, varying qualities of internet connection and working from homes where in many cases they will be caring for children or even sick family members.

ix) Those factors are to be considered against the general position that an extension of time which requires the loss of a trial date has much more significance and will be granted much less readily than an extension of time which does not have that effect. That remains the position in the current circumstances.

The judge was satisfied that the defendants had shown that in the current circumstances, even when all proper allowance was made for the use of technology and for the making of extra efforts, the exercise of preparing the reply evidence would take significantly longer than was provided for in the timetable laid down in September last year and that justice required that the defendants be given an extension of time notwithstanding the consequence of vacating the listed hearing.

Date of the new hearing

Keeping the recent authorities in mind regarding the effect of the pandemic, the judge listed the following principles that govern the question of whether a particular hearing should be adjourned if the case could not be heard face to face or whether instead there should be a remote hearing:

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 is possible by way of a remote hearing will be case-specific.

The judge further noted that the progress of the COVID-19 pandemic and of the measures to address it could not be predicted with any degree of certainty, meaning that matters might have moved to such a stage that it would be possible to have a traditional in-person hearing in July. Alternatively, the position could be such that it would not be possible to have an attended hearing even in the autumn.

This was a complex matter of considerable importance to the parties. However, the determination of the issue would involve judicial reading of the material and of the parties’ skeleton arguments with subsequent oral submissions and argument. There would be no live evidence. In those circumstances that was clearly a matter which was capable of being fairly determined in a remote hearing. A delay of a further period of three to four months was undesirable and was to be avoided if possible, even more so since there was no guarantee that an in-person hearing would be possible in the autumn.

The judge held that the June hearing would be vacated and the jurisdiction challenge be relisted for a hearing in July 2020.

Comment

This case provides useful guidance at the factors the courts will consider to determine whether a time extension should be granted (even in circumstances that would mean the listed hearing be vacated) and  the circumstances where a hearing could proceed in a virtual setting.

The judge underlined that the court can expect and require from lawyers a degree of readiness to put up with inconveniences; to use imaginative and innovative methods of working; and to acquire the new skills needed for the effective use of remote technology.

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