Further to our update on 3 April 2020, in two recent decisions, the English courts sent a strong message that they will continue to hear as many cases as possible, using the technology available to them.
In Re Blackfriars Ltd, the High Court rejected arguments that the restrictions imposed in response to the COVID-19 crisis were sufficient reason to adjourn a five-week trial. The trial, which is scheduled to begin in June 2020, is expected to involve four live witnesses of fact and thirteen expert witnesses.
The judge was satisfied that the claimant's application to adjourn was motivated by genuine concerns over safety and the limitations of the available technology, and not by a desire to gain a tactical advantage. However, he refused the application to adjourn the trial. In his view, both the emergency legislation enacted in response to COVID-19 and the specific guidance given to the civil courts sent a clear and consistent message that the government expects as many hearings to continue as possible, by means of the increased use of technology. The judge acknowledged the technological challenges but said that he was aware of at least two smaller trials which had already proceeded remotely during the COVID-19 lockdown. He ordered the parties to co-operate to explore ways in which a remote trial might proceed. If necessary, he would consider ways to make a remote trial more manageable, such as ordering a split trial of liability and damages issues.
Extensions of time
At the pre-trial review for a patent infringement claim, the patentee sought a two-week extension of time for service of reply evidence (Heineken Supply Chain BV v Anheuser-Busch Inbev SA). The reason given was the difficulties resulting from remote working during the lockdown and the illness of one member of the patentee's legal team with possible COVID-19 symptoms. Since the proposed extension would result in service of the evidence only two working days before the commencement of the original trial window, the patentee also sought a delay in the start date for the hearing.
In considering the application, the judge took into account the official guidance and earlier judgments including the above decision in Re Blackfriars Ltd. The judge concluded that the correct approach is for hearings to continue remotely where this can be done safely. Moreover, where cases have been listed, attempts should be made to keep to the directions timetable where this can be done without prejudicing safety and risking injustice.
The judge acknowledged that the COVID-19 lockdown has required reorganisation of personal and professional lives which has made the preparation of evidence more difficult. However, this only justified a short extension, which would not prejudice the trial date, and not the two-week extension sought by the patentee. The fact that a member of the legal team was unable to work for several days due to symptoms of COVID-19 was a factor to take into account, but it was not good reason for a long extension (although this might have been different if the overall legal team had been smaller).
In practice, many hearings have been adjourned since the beginning of the COVID-19 lockdown. Recent guidance to the judiciary suggests that, due to the difficulties involved in hearing cases remotely, many judges will only be hearing about half their usual caseload. However, as the above decisions show, parties cannot assume that listed hearings will not go ahead, or that simply mentioning the magic word "COVID-19" will result in a long extension of time. If an extension or adjournment is really necessary, the requesting party will need to provide detailed evidence as to why they cannot comply with the original timetable. Any such application needs to acknowledge that remote hearings are the "new normal" and explain why a solution cannot be found using the available technology.