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Achieving justice during a global pandemic
By Laura Bawden-Hindle & Belinda Green
In these two cases – one a commercial class action and the other a family court matter – the English courts have considered how justice might best be served when extensions of time or video conference hearings are proposed in times of global pandemic. In this article we consider how the reasoning applied by the courts might be of use for decision makers in these unprecedented times.
Municipio De Mariana & Others v (1) BHP Group PLC (formerly BHP Billiton) (7) BHP Group Ltd [2020] EWHC 928 (TCC)
Application for extension to serve reply evidence
On 5 November 2015, the Fundão Dam in Brazil collapsed resulting in the release of large quantities of toxic materials and contaminated water. The material entered the Rio Doce, causing harm to the riverside before ending up in the Atlantic Ocean. The collapse and its subsequent effects lead to what has been dubbed as the largest class action lawsuit ever brought in England, with around 202,000 individual claimants.
The case was set down to be heard over seven days from 8 June 2020. The defendants were due to serve their reply on 1 May 2020, but in the lead up to that deadline the COVID-19 pandemic began to take grip. The defendants applied for an extension of time to serve reply evidence, asking for the date to be pushed back to 19 June 2020 on the grounds that, as a result of the pandemic, more time was required to assemble their reply. They claimed that the cross-jurisdictional nature of the case and the location of expert witnesses in both the UK and Brazil, together with the difficulties of working remotely, made the May 2020 deadline untenable. If the application for an extension of time to file the reply evidence were to be granted, it would necessarily follow that the hearing would have to be pushed back as well. The Court had to determine when a face to face hearing could be fairly substituted for a remote hearing, and what approach a court should take when considering whether to grant an extension of time in the context of the pandemic. The application for extension was heard remotely, via Skype.
Cases to be dealt with justly
In deciding whether to grant the extension, the starting point for the Court was the overriding objective 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.1 This was considered by the Court in the context of a recent update to the Practice Directions 51ZA (PD51ZA) which provides at paragraph 4 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.
Principles for determining if a remote hearing is possible
Taking into account this direction, as well as authority from other cases and materials, the Court defined five principles which should be followed in determining if a case must be heard face to face, or whether a remote hearing is possible. These principles are as follows.2
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.
Engagement of one or more experts to provide reports on key technical issues.
ReSolution | June 2020