COVID-19: Trials - the show must go on

09 April 2020. Published by Alexandra Anderson, Partner

Judges are taking to heart the HMCTS's guidance focused on encouraging judges to maximise the use of video and telephone hearings using current technology. So, while the theatres in the UK remain closed, the theatres of justice continue with their activities.

In a judgment handed down on Monday, in the case of the matter of One Blackfriars Ltd, the Court has refused an application to adjourn a five-week trial due to start in June 2020. In the court's judgment, the legislation and the guidance from the courts (click here for our report on this) on dealing with the Covid-19 crisis made clear that as many hearings as possible should be conducted remotely through the use of technology. The Judge therefore order the parties to explore the technological options available to facilitate a remote trial.

The case concerns a claim against the former administrators of a company, claiming over £250m for their alleged mishandling of the administration. A 5-week trial was due to begin in early June 2020, involving factual and expert witnesses.

The claimant submitted that to proceed with the trial would be inconsistent with the Prime Minister's instructions on 23 March 2020 to stay at home and that a remote trial could not proceed without exposing those taking part to an unacceptable risk to their health and safety. They further submitted that the technological challenges of conducting a remote trial were too great and that it would give rise to the potential for unfairness.

In the Judge's view, s.53 to s.56 of the Coronavirus Act 2020 expanded the availability of video and audio links, whilst regs. 6 and 7 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 provided that a person could leave their home to attend court or to participate in legal proceedings and allowed gatherings of two or more people where it was reasonably necessary to participate in legal proceedings. These provisions suggested that the Government expected the courts to continue to operate during the current crisis. The new CPR PD 51Y on video and audio made specific provision to allow hearings to be conducted remotely so long as the lockdown lasted, through the use of technology. In the circumstances, the claimant'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 claimant had not adduced any detailed evidence to demonstrate that any participants would have particular difficulties in taking part in a remote trial, nor that it was essential to have everyone in the same physical space for the hearing, and the technological challenges of conducting a remote trial were not so great as to warrant an adjournment.  The Judge also noted that both parties would face the same challenges with the technology and, given the allegations against the defendants dated back to 2011, it was not in the interests of either party to delay the case any further. The application was therefore refused and the parties were ordered to continue to prepare for trial and to investigate the technology available to facilitate a remote trial, should that be necessary.

So the message, at least in the UK, is that trials must continue, wherever possible.  Those who are interested in the position in other jurisdictions can find a helpful guide here

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