Coronavirus disruption not enough to delay multi-million pound One Blackfriars trial
Author: Richard Armstrong
On 1 April 2020, a High Court judge ruled that a trial, scheduled for June 2020, should take place remotely, despite the claimant applicants asking for it to be postponed until after the COVID-19 crisis.
The matter of One Blackfriars Limited EWHC 845 (Ch) (also known as Hydge v Nygate) relates to the liquidation of London office block One Blackfriars (‘OBL’) and concerns a claim by the current joint administrators of the building against the former administrators for over £250 million for alleged mishandling of the administration of OBL between 14 October 2010 and 14 December 2011 when the sale of OBL’s main asset completed.
The current joint administrators allege that “the asset was sold at an undervalue and that, had the former administrators complied with their duties, a corporate rescue of OBL may have been achieved”.
The trial, which involves four live witness of fact and thirteen expert witnesses, was due to begin on the week commencing 8 June 2020 and last five weeks.
The applicants applied to adjourn the trial at the pre-trial hearing on 1 April 2020 because of the COVID-19 crises and based their reasoning on the following:
- Firstly, the trial would be inconsistent with the Prime Minister’s instructions to stay at home except for very limited purposes;
- Secondly, a remote trial could not proceed without exposing those taking part to an unacceptable risk to their health and safety;
- Thirdly, a remote trial would present too great a technological challenge; and
- Fourthly, there was potential for unfairness in conducting a remote trial of this claim.
On 1 April 2020, Mr John Kimbell QC, sitting as a Deputy High Court Judge, refused the application to adjourn and, whilst handing down his ruling remotely, ordered the parties to explore the technological options available to enable a remote trial.
In providing his reasoning, Mr Kimbell QC emphasised that the legislation and guidance from the courts made it clear that as many hearings as possible should be conducted remotely through technology. In doing so, Mr Kimble referred to the following:
- s.53 to s.56 of the Coronavirus Act 2020 which expanded the availability of video and audio links in court proceedings and which contained provisions to enable the public to see and hear those proceedings;
- reg.6(2)(h) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which states that a person can leave their home to attend court or to participate in legal proceedings;
- reg.7(b) and reg.7(d) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which permits gatherings of two or more people where essential for work purposes or where reasonably necessary to participate in legal proceedings.
- The Lord Chief Justice’s guidance on COVID-19, the protocol on the conduct of remote hearings issued on 26 March 2020 and the new CPR PD 51Y on video and audio hearings, all of which make clear that as many hearings as possible should be conducted remotely during the crisis through technology.
- s.71(1) of the Senior Courts Act 1981 which provides that High Court sittings can be held at any place in England and Wales.
In the circumstances, the applicant’s submission that it would be inconsistent with the Government’s guidance on lockdown measures to allow the trial to proceed was rejected. Whilst it was obviously imperative that a remote trial did not endanger the health of those taking part, the trial was not due to start until early June and much could change by then.
The technological challenges of conducting a remote trial were also deemed too insignificant to warrant an adjournment and this was not a trial which necessitated everyone being in the same physical space. The applicant had also failed to adduce any detailed evidence demonstrating why any participants would have difficulties taking part in a remote trial.
Mr Kimbell QC also commented that that both parties would face the same challenges with the technology and, given the allegations against the former administrators dated back several years, it was not in the interests of either party to delay the case any further.
The message therefore, as things presently stand in the UK, is that trials must still take place, wherever possible.
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