COVID-19: A recent judgment from the English TCC provides guidance as to how the court will approach applications for extensions of time which may result in a deferred hearing date

Muncipio De Mariana & Others v BHP Group PLC (formerly BHP Billiton) [2020] EWHC 928 (TCC) involved an application by BHP for an extension of time of several weeks to serve evidence in reply in respect of  an application it had made to stay proceedings on jurisdictional grounds. The jurisdiction hearing was due to take place on 8 June 2020. 

The judge considered the application in two stages:

- Whether there should be an extension of time for the gathering and serving of evidence? and 
- Whether the hearing should be adjourned if the case could not be heard face to face or whether instead there should be a remote hearing? 

The correct approach to applications for extensions of time

The judge held that the correct approach would be to keep in mind the overriding objective, paragraph 4 of PD 51ZA[i] , and any principles which impact on whether a future hearing will be vacated as a result of the extension of time (this is discussed in more detail below). The judge considered BHP’s application against the above overall and specifically in light of the following additional principles and guidance:

• The prompt administration of justice and compliance with court orders remain of great importance.
• The court can expect legal professionals to make appropriate use of modern technology. 
• The court recognises that there are real difficulties caused by the pandemic and by the restrictions imposed but the court will still expect and require from lawyers a degree of readiness to put up with inconveniences; to use imaginative and innovative methods of working; and to acquire new skills needed for the effective use of remote technology. 
• The court should be willing to accept evidence and other material which is less polished than would otherwise be required if that is necessary to achieve the timely production of the material but the court must not require compliance with deadlines which are not achievable.  
• The court does recognise 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 that those working from home may also have additional responsibilities such as caring for sick relatives, the vulnerable or children.

The factors above are then to be considered against the general position that an extension of time which requires the loss of a trial date has much more significance and will be granted much less readily than an extension of time which does not have that effect. 

Should the hearing date be adjourned?

The judge had earlier in the judgment considered the approach the court should take to the question of whether a particular hearing should be adjourned if it could not be heard face to face or, if there should be a remote hearing instead, and based on previous case law, held that the following principles should apply:

• The court must consider the importance of the continued administration of justice.
• There is now recognition that many disputes can be resolved fairly by way of remote hearings and in circumstances where such a move would have been inconceivable only a matter of weeks ago.
• The court should examine how the hearing will take place before accepting that a just determination cannot be achieved in such a hearing.
• The conclusion will be case-specific and may depend on what extent live evidence and cross-examination will be necessary.

Application to the facts

The judge considered the principles listed above and the effect this would have on the hearing date.  It is important to mention that prior to the hearing BHP had conceded that an extension of 5-6 weeks was sufficient rather than the 7 weeks originally requested. In granting the shorter extension of time the judge noted that “the Defendants have shown ……that even when all proper allowance is made for the use of technology and for the making of extra efforts the exercise of preparing the reply evidence will take significantly longer than was provided for in the timetable laid down in September last year. The points made by the Defendants as to the difficulties of remote working and the scale of the task to be undertaken are compelling”. 

As a result of the above decision, the hearing of the jurisdiction application would need to be postponed for a few weeks until the middle of July. The judge was of the view that by July face to face hearings might be possible although in the circumstances of this particular hearing, where there was no direction for oral evidence or cross examination, this was not vital as the court would have all the documents it needed before it. The judge was also dismissive of the points made by BHP, in relation to the seventh defendant who was based in Australia, saying that any prejudice to it would be modest even taking into account that it would be working remotely and in a very different time zone.  

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[i] 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