Court rejects Covid adjournment to press on with in-person trial

Marcus Smith J: Extremely tight case management

The High Court has ruled that the fears of three witnesses about giving evidence in person during the UK’s winter Covid spike should not lead to a five-week complex commercial trial being adjourned.

Mr Justice Marcus Smith said that, by holding a hybrid hearing at a “super court” in the Rolls Building, he could “sufficiently control the circumstances in which the witnesses give evidence” to assuage “any reasonable person’s concerns” about infection.

The financial list case of Bilta (UK) in liquidation and others v SVS Securities and others [2021] EWHC 36 (Ch) was adjourned last year due to the first lockdown and Tradition Financial Services (TFS) – the last active defendant – argued that next week’s trial should be adjourned again on the basis that it was a ‘dishonest assistance’ claim and so the “gold standard” of an in-person hearing was necessary.

Three of TFS’s main witnesses “were all ready and willing to attend the trial in person to give evidence” until “late December 2020”, despite London’s tier 4 Covid status, the judge recorded.

But given the worsening state of the pandemic and latest lockdown, they now indicated “strong reluctance” to give evidence in person.

TFS strenuously denies the claim. The judge said: “Without straying into the substance of the issues between the parties, it is clear – and I proceed on this basis – that issues of honesty and dishonesty will loom large during the course of the trial.”

He said the three witnesses would be central to the allegations of dishonesty.

“Not only will the witnesses’ evidence affect the outcome of the issues between Bilta and TFS, but it will affect their own reputation and future employability.”

Marcus Smith J decided against adjourning the trial, subject to “extremely tight” case management.

He said it was “not appropriate to ask”: (a) Can an in-person hearing fairly and properly take place? If ‘Yes’, then proceed no further. If ‘No’ then: (b) Can a remote hearing fairly and properly take place? If ‘Yes’, then proceeding no further. If ‘No’, then adjourn.

He explained: “Such an approach misses the fundamentally interconnected nature of the questions under consideration. The reality is that these questions are linked and must be considered together.”

The hearing would explicitly be a hybrid hearing with the public invited to watch remotely and numbers in court limited to 20 as an “absolute maximum”.

When the three witnesses gave evidence, the witness box should be “as far removed from all other persons” as possible – “five metres or so” away.

To reduce their “sense of isolation”, they could be accompanied by a household member, who would sit within the five metres.

The judge would not be accompanied by an usher or clerk, and the parties would only be allowed two people in court when each witness gave evidence, and three people at other times.

Among the other changes proposed by Marcus Smith J were a “much more detailed trial timetable” to reduce waiting, and possibly a change in court hours to run the hearing with short breaks from 8.45am to 2.15pm.

Steps would also be taken to ensure that participants accessed and left the building without interacting with other people, and car parking spaces found if needed.

He described his arrangements as “sufficiently robust as a baseline or starting point so as to so as to assuage any reasonable person’s concerns about Covid-19 infection through attending court in person, including for the purposes of giving evidence”.

Other witnesses could potentially give evidence remotely from, for example, a solicitor’s offices, but he said it seemed “difficult to imagine a safer regime” than the one he was putting in place.

The judge said he would need “considerable persuasion” to permit the lead advocates on each side to appear remotely were it suggested. “It seems to me that wherever possible the judge and the lead advocates should see the same oral evidence.”

If it nonetheless became necessary to hear the evidence remotely, he accepted TFS’s argument that this would be inferior, but not that it would be unfair.

The hearing was a “commercial trial between sophisticated parties”, none of the witnesses had identified “any insuperable obstacles to giving evidence remotely” and, because the lead advocates and the judge would receive the witnesses’ testimony in exactly the same way, “proper submissions as to weight of evidence” could be made to reflect the fact that witnesses were giving evidence remotely.

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