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Extensions of time and adjournments in the era of COVID-19

On 20 April 2020, the TCC (HHJ Eyre QC) gave judgment in Municipio de Mariana & ors v BHP Group Plc & anor [2020] EWHC 928.

The Judgment may be of interest to those making, or facing, requests for extensions of time for the service of evidence, including where such extensions may result in adjournments of very substantial hearings, as a result of the COVID-19 pandemic.

The underlying proceedings arise out of the collapse of the Fundão Dam in Brazil.  The claims are brought by around 200k Brazilian Claimants against the Defendants, BHP Group Plc and BHP Group Ltd.  The Defendants have applied to challenge the jurisdiction of the English Court and to have the proceedings struck out as an abuse of process.  That challenge was listed for a seven day hearing commencing on 8 June 2020.

In the run up to the June hearing, the Defendants were to have seven weeks, from 13 March to 1 May 2020, to serve their reply factual and expert evidence. But that seven week period coincided, almost precisely, with the impact of the COVID-19 pandemic being felt acutely both in the UK and Brazil (where the Defendants’ factual and expert witnesses are based).

The Defendants therefore applied for a lengthy extension of time to file their evidence in reply and a consequent adjournment of the hearing in light of the challenges posed by the COVID-19 pandemic.  Such challenges included issues caused by remote working, travel and communication difficulties between UK and Brazil, and difficulties faced by the Defendants’ witnesses and experts as a result of COVID-19 and the restrictions in place in the UK and Brazil. The Claimants opposed any extension of time beyond a short one, and opposed the adjournment of the June hearing.

The Defendants’ application was heard remotely on Friday 17 April 2020, and the Court gave a detailed Judgment on Monday 20 April 2020. The Judgment considered the guidance and the authorities to date arising out of the COVID-19 pandemic in respect of both extensions of time and adjournments and identified the principles the Court should apply to determine such applications (paragraphs 24 and 32). In particular, the Court analysed the recent COVID-19 related decisions in National Bank of Kazakhstan v Bank of New York Mellon (unreported); Re Smith Technologies (unreported); Re Blackfriars Ltd [2020] EWHC 845 (Ch); and, most recently, Heineken Supply Chain v Anheuser-Busch Inbev [2020] EWHC 892 (Pat).

The Judge held that the question of whether the Defendants should have an extension of time to file and serve their reply evidence, including where it resulted in the adjournment of a hearing, should be determined by having regard to the (i) overriding objective; (ii) paragraph 4 of PD51ZA (which provides that in so far as compatible with the proper administration of justice, the Court will take into account the impact of the COVID -19 pandemic in considering applications for extensions of time), and (iii) the Lord Chief Justice’s guidance (paragraph 32). The Court identified, in addition, nine principles which apply to such applications (paragraph 32).  As for whether a hearing should be adjourned because the case cannot be heard in person, or whether there should be a remote hearing instead, the Court identified five principles (paragraph 24) including:

Inevitably  the question of whether there can be a fair resolution… by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether and if so to what extent live evidence and cross-examination will be necessary is likely to be important in many cases. There will be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote hearing.

The Judge upheld the Defendants’ application and granted the Defendants an extension of five and a half weeks to serve their reply evidence and therefore adjourned the June hearing. The hearing has been re-listed to take place over 8 days commencing on 20 July 2020, and the Judge held that it could fairly be heard remotely if need be (paragraphs 47 and 48).

The full text of the judgment is available here.

Nicholas Sloboda and Veena Srirangam (led by Charles Gibson QC) appeared for the Defendants (BHP).

Daniel Toledano QC, Maximilian Schlote and Stephanie Wood also act for the Defendants in these proceedings.