The proceedings concern the collapse of the Fundão Dam in Brazil on 5 November 2015. The Claimants are pursuing a claim for damages arising out of alleged contamination caused by the collapse of the dam.
A hearing to determine the first and seventh Defendants’ application to stay the proceedings on jurisdictional grounds was originally listed for seven days from 8 June 2020. The timetable provided that the Defendants’ evidence must be served by 1 May 2020. In light of the global restrictions imposed as a result of the ongoing COVID-19 pandemic, however, the Defendants applied for an extension of time to file their evidence, which would require the original listing to be vacated. The Defendants also sought an adjournment on the basis there would be a greater prospect of being able to hold the hearing in Court as opposed to remotely later in the year.
HH Judge Eyre QC therefore had to decide whether to: (i) allow an extension of time for service of the Defendant’s evidence and/or (ii) adjourn the 8 June hearing or have the hearing proceed remotely; . In reaching his decision, the Judge set out a helpful summary of the relevant principles:
Extensions of time
- Where possible, existing deadlines should be met. The prompt administration of justice and compliance with Court orders remain of great importance even in circumstances of a pandemic.
- 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.
- The Court may be willing to accept evidence and other material which is less polished and focused.
- The Court will avoid requiring compliance with deadlines which are not achievable even with proper effort.
- It is recognised that some things may take longer and require more work as a result of remote working.
- Extensions which result in the loss of a trial date will be granted much less readily than extensions which do not.
- Regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay is a consequence of the ongoing pandemic.
- There is to be a recognition of the extent to which disputes can be resolved fairly by way of remote hearings.
- 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.
- 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 remotely.
- Inevitably, the question of whether a fair resolution is possible by way of a remote hearing will be case-specific and, in some cases, it may not be possible for the Court to be satisfied that a fair resolution can be achieved remotely.
The Judge concluded that the Defendants had shown that, in the current circumstances, even allowing for the use of technology and extra effort, the reply evidence would take significantly longer to prepare than was provided for in the timetable. This was due to the fact that: (i) travel restrictions meant that the lawyers from the United Kingdom were unable to travel to Brazil and so work had to be conducted remotely; (ii) there were large volumes of documents involved and the translators needed to be present at meetings conducted remotely; and (iii) there were difficulties with the Defendants’ expert witnesses in Brazil as a result of the lockdown. A five to-six-week extension was therefore granted. This had the knock-on effect of requiring the original hearing to be re-listed.
The Judge also concluded that, although the matter was complex and required substantial documents to be presented and analysed, the determination of the stay application would involve judicial consideration of that material together with the parties’ skeleton arguments and oral submissions. There was however no requirement for any ‘live’ witnesses or expert evidence. As such, the matter was clearly capable of being fairly determined in a remote hearing. The hearing was therefore re-listed for 20 July 2020 rather than later in the year as sought by the Defendants.
This judgment highlights the Court’s approach to balancing existing procedural timetables against ensuring the continued administration of justice. The key principles set out above provide a helpful steer for legal practitioners considering applying to the Court to vary a procedural deadline or to adjourn a hearing date in light of the impact of COVID-19.
The Courts are very much staying true to the Ministry of Justice’s “business as usual” mantra. Parties complaining of general inconveniences as a result of COVID-19 will find it difficult to persuade a Court to alter a procedural timetable or adjourn a hearing without putting forward a compelling and insoluble reason for doing so.
The judgment also demonstrates that the Courts strong preference is to order remote hearings to take place in order to maintain access to justice during these uncertain times and to limit any backlog once COVID-19 restrictions are lifted in their entirety.