High Court rejects attempt to adjourn £250m trial because of virus

The Boomerang: Case set to return to court remotely

The High Court has rejected an application to adjourn a five-week trial of a £250m insolvency claim because of the coronavirus pandemic.

John Kimbell QC, sitting as a deputy High Court judge, said the government’s coronavirus legislation sent a “very clear message” that the courts were expected to function “so far as they are able to” by using technology to hold remote hearings.

Mr Kimbell said the joint liquidators of One Blackfriars Limited, former owners of the South Bank skyscraper referred to as ‘The Boomerang’, claimed over £250m in damages from the company’s former administrators for alleged mishandling of the administration and selling the site at an undervalue.

The joint liquidators applied for an adjournment of the five-week trial listed for June, one of the grounds being that going ahead would be “inconsistent” with the prime minister’s announcement of a lockdown.

The Coronavirus Act 2020 came into law on 25 March – two days after the lockdown began – and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 the following day. Lawyers for the joint liquidators first proposed an adjournment the day after that.

Mr Kimbell said the regulations made an exception to the rule against leaving homes and gatherings of more than two people where it was “reasonably necessary … to participate in legal proceedings or fulfil a legal obligation”.

Referring to messages from the Lord Chief Justice, the Remote Hearing Protocol, guidance from HM Courts & Tribunals Service and new Practice Direction 51Y on remote hearings, the judge said he had “no hesitation whatsoever” in rejecting the argument that proceeding with the trial would be inconsistent with the prime minister’s announcement.

“There is in my judgment a clear and consistent message which emerges from the material I have referred to. 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.”

The High Court heard in Re Blackfriars Limited [2020] EWHC 845 (Ch) that the trial involved four witnesses of fact and 13 expert witnesses.

The joint liquidators argued that going ahead would expose people to an “unacceptable” health and safety risk, particularly the two or three participants who fell into the category of “vulnerable” under the regulations.

Mr Kimbell said the trial was not due to start until 8 June and the court had “very little concrete evidence of the particular difficulties that participants may have”, but information on those difficulties should be provided at the next pre-trial review.

The judge said that if “immovable obstacles” existed in relation to the participation of experts, the parties should co-operate and “propose ways in which issues which can be tried without the involvement of those particular witnesses”.

This was a “necessary part of the flexible case management envisaged under paragraph 18 of the Remote Hearing Protocol”.

Mr Kimbell said there were “steps which can be taken over the next three to four weeks to prepare for trial, such as completing the outstanding expert memoranda, the exchange of short supplementary expert reports and agreeing the trial bundle, which are necessary in any event, whether the trial ultimately goes ahead on all issues or only some, and which can be done safely and without travel or gatherings in contravention of the Coronavirus Regulations”.

The joint liquidators also argued that the “technological challenge” posed by a five-week trial was too great and the technology “untested”.

Mr Kimbell responded that since 16 March there had been “at least two examples of fully remote trials”, one at the Court of Protection using Skype for Business and the other heard by Mr Justice Teare at the Commercial Court using Zoom.

“What I draw from the experience of the courts so far in conducting remote trials is that on the whole they have been successful even when the proceedings involved multiple parties and in excess of ten witnesses.

“There have not, it seems, been repeated failures in audio or video link. However, it is fair to say that the trials so far have been on a somewhat smaller scale than the remote trial envisaged in these proceedings.

“I am not satisfied, however, that the technological challenges which no doubt will be presented are so great as to make it appropriate to adjourn now.

“In my judgment, co-operation and planning is essential if a remote trial in this case is going to be possible, and that is why I have ordered the parties to co-operate in seeking potential remote trial platforms and document handling systems.”

Rejecting the joint liquidator’s argument that there was a risk of potential unfairness, Mr Kimbell said: “This is litigation between well-resourced sophisticated parties. Both have, if I may say so, excellent legal teams, and there is an equality of arms.”

Mr Kimbell refused the application to adjourn, ordering the parties to continue to prepare for trial and to “co-operate in exploring ways in which a fully remote trial can take place safely”.

However, a circuit judge in the family court has given a very different perspective of remote justice, outlining their concerns about providing a fair hearing.

Writing on The Transparency Project website, the anonymous judge said that, while it was “amazing” that justice could continue remotely, “doing so in this way is at the cost of our ability properly to connect to one another, and judges like me are compromised in their ability to conduct hearings with the empathy, fairness, understanding and compassion that is rightly valued as an essential element of the Family Court”.

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