Let It Be - Liverpool Registry of TCC considers impact of COVID-19 extensions on hearing dates

The unprecedented impact of COVID- 19 is restricting the ability of some parties to meet deadlines around pleadings, disclosure and evidence. Whilst the current theme emerging from the court is “business as usual”, the need for flexibility to ensure fairness has been recognised.

But how far does that flexibility go? Will a party succeed in obtaining an extension of time if the effect will be the loss of a scheduled hearing date?

This was the issue faced by the Technology and Construction Court (TCC), Liverpool Registry, in its decision handed down on 20 April 2020 in the case of Muncipio De Mariana & Others v BHP Group PLC (formerly BHP Billiton) EWHC 928 (TCC).

The TCC’s decision, in the context of the facts of the largest class action ever brought in England, provides guidance to any party contemplating a COVID-19 extension. It also highlights that an extension causing the loss of a hearing date has greater significance and will be granted much less readily than an extension that does not.

Background

The background to this case is notable, particularly in the context of international dispute resolution. The proceedings arise from Brazil’s worst environmental disaster. The collapse of the Fundão Dam in Brazil on 5 November 2015 released toxic waste and contaminated water, killing 19 people. The Claimants are an extraordinary sized class action: 202,000 individual claimants together with about 530 private businesses or foundations, 25 municipalities, 15 churches and faith-based institutions and the archdiocese of Mariana, about 145 individuals from the Krenak indigenous community and 5 utility entities.

The Defendants, BHP Group PLC (BHP), are an Anglo-Australian mining company. The Claimants allege that BHP are the ultimate controllers of those responsible for operating the dam. Proceedings were launched in Brazil. To maximise the prospects of a fair and speedy resolution, the Claimants launched proceedings in May 2019 against BHP in the Liverpool Registry of the TCC seeking around £5bn in compensation. A subsequent attempt by BHP to move the case from Liverpool to the TCC in London failed.

The facts

BHP are seeking a stay of the current TCC proceedings on jurisdictional grounds. A timetable was set by the court leading to a hearing starting on 8 June 2020.

BHP were due to reply to the Claimant’s evidence by 1 May 2020.  Citing difficulties caused by COVID-19 and the measures put in place to address it, BHP first sought a 7 week extension to 19 June 2020, then revised this to 5-6 weeks. BHP claimed that the restrictions had doubled the time for preparing the reply evidence; citing travel restrictions, difficulties with remote home working, volume of documents and need for interpreters. They also focused on difficulties faced by their Brazilian expert including slow and intermittent internet access, separation from his staff and library and having to care for his vulnerable parents and diabetic wife.

If granted, the extension would mean a loss of the 8 June 2020 hearing date. BHP proposed that the hearing be moved to July 2020, or preferably autumn 2020 to maximise the prospects of an in person hearing. The Claimants, whilst accepting a modest extension was appropriate, resisted the longer extension sought by BHP and the loss of the June hearing date. If it had to be moved, it should be relisted for hearing in July 2020. A remote hearing of the jurisdictional challenge was perfectly feasible.

The decision

Correct approach

His Honour Judge Eyre QC, considering the application by Skype, held that the correct approach for determining extensions of time in the context of the COVID-19 pandemic is as follows:

• To start with, the overriding objective is that cases be dealt with justly; in ways proportionate to the amounts involved, importance of the case and complexity of issues; and expeditiously and fairly.
• To have regard to PD51ZA paragraph 4 which states: 

"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."

• To consider protocols and guidance and the principles surrounding whether a future scheduled hearing will be lost as a result of the extension.

Accordingly the Judge assessed BHP’s application against the following principles:

• The objective must be to keep to existing deadlines. Where that is not realistically possible, only the minimum extension of time which is realistically practicable should be allowed. The prompt administration of justice and compliance with court orders remain of great importance even during a pandemic.
• The court expects lawyers to make appropriate use of modern technology.
• The court recognises the real difficulties caused by the pandemic and by the restrictions imposed. It expects lawyers and others to “roll up their sleeves or to go the extra mile to address the problems encountered”. This may require imaginative and innovative methods of working and acquiring new skills to use remote technology effectively.
• The same approach applies to expert witnesses, although different considerations are likely to apply where the experts are private individuals.
• The court should accept evidence and other material which is less polished and focused than normal if that gets the job done on time.
• The court should not require compliance with unachievable deadlines.
• The court should acknowledge that :
• it is likely to take longer and require more work to achieve a particular result (such as the production of evidence) by remote working than would be possible by more traditional methods; and
• there are consequences of the current restrictions on movement and need to work from home due to the pandemic. For example, the lack of fast internet connections and teams of IT support staff at hand. People working from home may be caring for sick family members or for children or supporting vulnerable relatives elsewhere.

All these factors must be considered against the general position that an extension of time which requires the loss of a hearing date has much more significance and will be granted much less readily than an extension of time which does not.

Should time be extended and, if so, for how long?

Applying these principles, the Judge granted BHP an extension of 5-6 weeks notwithstanding the impact on the hearing date. Even when allowance was made for the use of technology and of extra efforts, the preparation of the reply evidence would take significantly longer than the timetable allowed. BHP’s difficulties of remote working and the scale of the task to be undertaken were found in this case to be “compelling”.

The new date for the hearing

The Judge acknowledged that it is hard to predict the progress of the pandemic and measures to address it. There was no guarantee an in person hearing would be possible in the autumn or impossible in July. This was a complex and important matter but one where the jurisdictional challenge would be determined through documents and submissions rather than with live evidence.  

There must be recognition of whether disputes can be resolved fairly by remote hearings. That must be resolved on a case specific basis. Here the matter could be determined fairly in a remote hearing, even with one of the parties operating in a different time zone.

The June hearing was therefore vacated but relisted with minimum delay to a rescheduled July date. There was provision for a remote hearing if needed.

The impact

Securing an extension of time that affects a hearing date will be more difficult to achieve. The court will need to be confident that there is no alternative to allow that date to be held.

The continuing uncertainty over the timing of a return to in-person hearings and the prospects of potential future waves of the pandemic are likely to give greater impetus to the court’s desire to use remote hearings where appropriate to ensure hearing dates are not lost or suffer only the minimum delay.