The Show Must Go On!

April 17, 2020

By Jodie Wildridge

… this mantra[1], originally adopted by the now sadly departed Freddie Mercury, appears to have been taken up with full force by Mr John Kimbell QC sitting as a Deputy High Court Judge in his recent decision in the case of Re Blackfriars Limited [2020] EWHC 845 (Ch).

The case concerned an application by joint liquidators of a Company to adjourn a five-week trial involving four live witnesses of fact and thirteen expert witnesses, due to commence in early June 2020. The liquidators claim damages of over £250 million for the alleged mishandling of the administration of the Company by its former administrators.

The application, which was opposed by the former administrators on the basis that an adjournment was not necessary nor appropriate, was sought by the joint liquidators on the following 4 grounds:

1. To proceed with the trial would be inconsistent with the Prime Minister’s instructions on 23 March 2020 to stay at home;
2. A remote trial could not proceed without exposing those taking part to an unacceptable risk to their health and safety;
3. The technological challenges in conducting a remote trial were too great; and
4. There was potential for unfairness in conducting a remote trial.

Despite the Judge being “more than satisfied” that the application was “entirely due to real concerns whether a trial can take place safely and not for tactical reasons”; the application to adjourn was refused.

In reaching his decision, the Judge took account of a number of sources including, but not limited to:

• the Coronavirus Act 2020;
• the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, S.I. No. 350;
• the message from the Lord Chief Justice to the Judges of the Civil and Family Courts on 19 March 2020;
• the revised Protocol regarding Remote Hearings, published on 26 March 2020;
• the further message from the Lord Chief Justice on 23 March 2020 on the Review of Court arrangements due to COVID-19;
• Practice Direction 51Y; and
• section 71(1) of the Senior Courts Act 1981, which provides that High Court sittings can be held at any place in England and Wales.

Following a review of all of the relevant materials, the Judge had:

“…no hesitation whatsoever in rejecting [the]…submission that to proceed with a remote trial in this case would be inconsistent with the guidance issued by the Prime Minister on the evening of 23 March 2020.”

Most fundamentally, the Judge found that the legislation and guidance pointed to “…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 Judge was conscious that “much could change in the next ten weeks”; and that as a necessary part of flexible case management envisaged under the Protocol regarding Remote Hearings, parties were expected to cooperate to address the challenges presented by remote communication. Ultimately, any alleged unfairness caused by the remoteness of the proceedings would apply equally to both parties. The Judge was also mindful that since 16 March 2020, at least two fully remote trials have proceeded successfully, albeit on a smaller scale[2]; and so “…whilst not underestimating for one moment the technological challenge”, the same did not warrant an adjournment.

The message is clear. Hearings will proceed to be heard remotely wherever possible. The Court will properly scrutinise the merits of any application to adjourn, and will not regard the COVID-19 pandemic as being in and of itself a sufficient reason for an adjournment.

Whilst the legal landscape is changing, the use of video technology as a channel through which to conduct business is a far from new concept here at Exchange Chambers. Our long-founded familiarity with remote audio and video communication places us, we think, very much at the forefront of the current shift in the administration of justice.

That position at the forefront is reflected in the number of members of Exchange who have appeared before the Courts throughout England and Wales remotely by video link since the lockdown, conducting the full range of hearings from straightforward winding up petitions through to the most complex of interim applications.  With multi-day and multi-party trials back on the horizon, there are equally a large number of members geared up and briefed and ready to appear in those trials.

Consistent with our position as a leading provider of mediation services, we continue to successfully conduct mediations via Zoom as both mediators and as advocates.  Remote working and social distancing provide no bar to a mediation proceeding or succeeding.

Our past experience and forward thinking in this area have allowed us to keep pushing forward and to minimise the daily disruption encountered by the lockdown. And our progress continues. By way of twice-weekly internal meetings via Microsoft Teams, we share and update our knowledge and experiences of this remote hearing landscape in order to further enhance our development in this area.

Jodie Wildridge is a second six commercial pupil at Exchange Chambers who practices in the areas of commercial dispute resolution, insolvency and property and who appears regularly in the District Registries of the High Court and in the County Court on a wide range of matters

[1] F. Mercury esquire circa 1990.

[2] Re Blackfriars Limited [2020] EWHC 845 (Ch), 33 and 44-46