A High Court judge has ruled that a five-week trial, scheduled for June, should take place remotely, despite the claimants asking for it to be postponed until after the Covid-19 crisis.
High Court judge John Kimbell QC ruled that going ahead via videoconference, rather than postponing, is “precisely what both the Coronavirus Regulations themselves and the guidance issued by the lord chief justice had in mind”.
The case concerns the liquidation of London office block One Blackfriars (OBL) and is a dispute between the current joint administrators and the former administrators of the building.
The joint liquidators are claiming damages of more than £250m, alleging the mishandling of the administration of OBL between 14 October 2010, when the former administrators were appointed, and 14 December 2011, when the sale of the OBL’s main asset completed.
They 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”.
A five-week trial of liability and damages issues is due to begin in the week commencing 8 June. It was scheduled in November 2018 and it involves four live witnesses of fact and 13 expert witnesses.
At a pre-trial hearing last week, lawyers for the joint administrators argued that the trial should be postponed for four reasons:
- Firstly, to proceed with the trial would be inconsistent with the prime minister’s instruction to stay at home except for very limited purposes
- Secondly, the trial cannot proceed without exposing participants and others working behind the scenes to an unacceptable risk to their health and safety.
- Thirdly, the technological challenge posed by a five-week trial was too great.
- Finally, there is a real risk of unfairness or potential unfairness in conducting a remote trial of this claim.
However, the judge, in a ruling handed down (remotely) this week dismissed all four arguments.
According to the ruling, the regulations governing the lockdown state: “During the emergency period, no person may participate in a gathering in a public place of more than two people except… where reasonably necessary… to participate in legal proceedings or fulfil a legal obligation.”
The judge said in his ruling: “It seems to me very clear that by making specific exemptions in this way to the two major restrictions on gatherings and on movement, for the benefit of court proceedings, the legislature is sending a very clear message that it expects the courts to continue to function so far as they are able to do safely by means of the increased use of technology to facilitate remote trials.
“Far from being inconsistent with government guidance in response to the pandemic, the use of video technology and electronic document handling software is precisely what both the Coronavirus Regulations themselves and the guidance issued by the lord chief justice had in mind.”
As for safety, the judge said this was “an important issue”.
“A remote trial must not endanger the health of any participants or, indeed, anyone else involved in the trial behind the scenes. Two or three of those expected to participate in the trial fall into the category of vulnerable person, as defined in Regulation 1 of the Coronavirus Regulations,” the judge said.
However, the case isn’t scheduled until June, the judge added.
“The government is due to review the state of the pandemic and whether the restrictions currently in place should continue in full force by my calculation on three occasions before the trial. It has been a very fast-moving situation and much could change in the next 10 weeks as a result of any of those reviews.”
There is also enough time, if the lockdown is still in place, to work out sage ways to make the trial happen.
As for technology, the judge said that, to date, two trials have gone ahead, one via Skype and one via Zoom. Although much shorter, they involved witnesses and trial bundles.
He said he was “not satisfied that the technological challenges which no doubt will be presented are so great as to make it appropriate to adjourn now”.
“In my judgment, co-operation and planning is essential if a remote trial in this case is going to be possible, and that is why I have ordered the parties to co-operate in seeking potential remote trial platforms and document handling systems.
“I would expect any proposed system to be subject to robust testing from as many of the locations from which participants are likely to be giving evidence (or making submissions), not only to ensure adequate video and audio quality but to ensure that documents can be displayed quickly. In particular, careful attention must be paid to the internet bandwidth available at the locations from which witnesses intend to give evidence.”
As for potential unfairness, the judge said: “The challenges, and indeed the upsides, of proceeding with a remote trial will apply to both sides equally.
“This is litigation between well-resourced, sophisticated parties. Both have, if I may say so, excellent legal teams, and there is an equality of arms.”
The judge concluded: “I refuse the application to adjourn and instead order that the parties continue to prepare for trial. I have also ordered that the parties are to co-operate in exploring ways in which a fully remote trial can take place safely in accordance with the lord chief justice’s guidance issued on 23 March 2020 and the Remote Hearings Protocol.”
He said the arrangements for the trial should be reviewed at a remote pre-trial hearing in two weeks’ time.
Adrian Charles Hyde and Kevin Anthony Murphy (joint liquidators of One Blackfriars Ltd) v Anthony David Nygate (in his capacity as representative of the estate of James Joseph Bannon) and Sarah Megan Rayment (the former joint administrators of One Blackfriars Ltd)
Business and Property Courts (Mr John Kimbell QC sitting as a Deputy High Court Judge), 6 April
Simon Davenport QC and Tom Poole (instructed by Humphries Kerstetter) are acting for the claimants.
Justin Fenwick QC and Ben Smiley (instructed by Mayer Brown) are acting for the respondents.
