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Time extensions and remote hearings in the COVID-19 pandemic

In the recent case of Muncipio De Mariana & others v BHP Group plc [2020] EWHC 928 the Court provided guidance on how it will determine applications for extensions of time and decide whether hearings can be conducted remotely as a result of the effects of COVID-19.

Background of the case

The case concerns a complex piece of multi-party litigation arising from the collapse of the Funado Dam in Brazil. It is thought to be the largest group litigation case brought in England. The recent decision relates to an application for an extension of time by the First and Seventh Defendants (“the Defendants”).

The application was heard a few weeks after the new temporary Practice Direction 51ZA took effect. The new Practice Direction allows parties to agree time extensions up to 56 days without making an application to Court and modifies the usual 28-day rule in CPR 3.8. It also requires the Court to consider the effects of COVID-19 when considering applications for extensions of time.

In the present case, the Defendants had applied to stay the proceedings on jurisdictional grounds and directions had been given for the application, including provision for a 4-day hearing commencing on 9 June 2020. The parties subsequently modified the timetable by consent and the new timetable required the Defendants to file/serve its evidence in reply by 1 May 2020.

The Defendants subsequently applied to extend the deadline until 19 June 2020 due to the effects of COVID-19. If the extension was granted, the hearing on 9 June 2020 would have to be vacated and relisted at a later date. The Defendants asked for the hearing to be relisted in the autumn when there was a greater chance of a hearing taking place in person.

The application required the Court to determine two issues:

  1. Whether to grant an extension of time because of the effects of COVID-19 and if so, how long;
  2. Whether the hearing of the application could be conducted remotely.

The Court said that the overriding objective, which requires the Court to deal with cases expeditiously and fairly, would always be the starting point when determining extensions of time and in most cases “justice delayed is justice denied” even where the delay is caused by a pandemic. The Court also said that it would be rigorous in examining whether a matter could be dealt with fairly at a remote hearing and the parties should expect to see an increased willingness from the Court to conduct hearings remotely than before the pandemic.

The Court said that as a general principle, extensions of time which require vacation of a hearing will be less willingly granted than extensions which do not impact on a hearing date; however, it is case specific and there are other factors to consider when determining such applications. The Court said regard should be had to the following factors:

  • Parties are expected to meet existing deadlines where possible and where it is not possible to meet a deadline, extensions should be kept to a minimum.
  • Legal teams are expected to make use of modern technology, embrace the new methods required for remote hearings and “go further than normally required”.
  • The Court should be willing to accept that the material submitted by the parties may be less polished and focused than normal.
  • The Court should be realistic about deadlines and not seek to demand compliance with unachievable deadlines.
  • The Court must have regard to the effects of COVID-19 in accordance with new Practice Direction 51ZA including restrictions on movement and the practical difficulties of working from home.

Outcome

The Court held that:

  1. The Defendants had demonstrated that the existing deadline was not possible, and more time was required to prepare their evidence in reply. The Court allowed the Defendants the extension but highlighted the need for the Defendants to make use of technology and put in the “extra effort” required to meet the new deadline.
  2. Although the application involved complex issues and a substantial amount of documentation, it did not require live evidence and could be fairly determined at a remote hearing. The Court held that it was undesirable to delay the hearing until the autumn and relisted the hearing for July 2020. The Court rejected the Defendants argument that the hearing should be delayed until the autumn when there was a greater chance of a hearing in person being possible.

Practical implications of the Muncipio De Mariana & others v BHP Group plc case

This case provides useful guidance on the factors the Court will consider when determining time extensions and whether hearings can proceed remotely. It also sends a clear message to parties and their legal advisers that they are expected to “roll up their sleeves” to address the problems created by the pandemic, even if it requires them to work harder to achieve the same results and adopt new methods of working. The decision also confirms that remote hearings should be used where possible to ensure that “the wheels of justice keep turning” in the pandemic.

How we can help

If you have any concerns about the progress of a piece of litigation, remote hearings or the effects of COVID-19 on litigation, please contact: