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Flexible approach taken by Court under Remote Hearings Protocol (COVID-19)

In circumstances where an application was made for an adjournment of a four-day trial involving cross-examination of witnesses, the court showed extraordinary flexibility in seeking to accommodate parties’ circumstances and ensure the proper administration of justice.

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In circumstances where an application was made for an adjournment of a four-day trial involving cross-examination of witnesses, the court showed extraordinary flexibility in seeking to accommodate parties’ circumstances and ensure the proper administration of justice.

Hilary Stonefrost (instructed by Collyer Bristow) for the Applicants, contended that a remote trial should be possible using video conferencing facilities.

Eleanor Temple (instructed by Lupton Fawcett) for the Respondents, argued that an adjournment of the trial should be ordered, due to a variety of difficulties arising from the COVID-19 pandemic.

What was the background?

The Respondents, Mr Pearson and Mr Mackie, were the directors of Smith Technologies Limited (in liquidation) (the “Company”). The case concerns the conduct of the Company’s affairs in the months immediately before the Company was wound up. The Liquidators allege that Mr Pearson and Mr Mackie were in breach of their duties to the Company and recovery is sought of sums jointly and severally from them.

The matter was listed for a four-day trial in the Insolvency and Companies Court commencing on 31 March 2020.

On 23 March 2020, in connection with the escalating COVID-19 situation, Judge Jones directed that the trial should go ahead “electronically” and invited the parties to look into this possibility and to contact the court as soon as possible.

The Respondents thereafter made written submissions to the court, seeking an adjournment of the trial for a number of cumulative reasons, including:

  1. The Respondents, together with their instructing solicitors and counsel, all live in different locations in the North East and it was said there would be real problems taking instructions from two separate clients in two different locations and solicitors and counsel having to do the same during the course of the trial.
  2. The proceedings, it was said by the Respondents, are document centric and there was a real risk of injustice to the Respondents in not being able to fully participate in the proceedings electronically or to feel confident in the process.
  3. The Respondents and their legal team submitted they had no prior experience of using Skype, conducting a trial remotely, or electronically and there was insufficient time to allow them to become sufficiently experienced in the use of the relevant technology at such short notice so as to permit them to participate in the trial fully and fairly and to make for an effective trial within the current trial timetable.
  4. The Respondents and their solicitors said they did not have sufficient work space at home to accommodate a trial bundle and laptops.
  5. The Respondents’ counsel was concerned that she could not conduct the trial effectively from home, with two young children present in her household.
  6. Mr Pearson was self-isolating at home (from the Coronavirus), as a vulnerable person, for 12 weeks.
  7. Mr Mackie, it was said, had poor internet connectivity in his home and also expressed a concern that he shared his home with his wife and daughter who would be around if he were to remotely access the trial and this would effect his concentration as he would not be in a controlled environment.
  8. It was additionally submitted that Mr Mackie was feeling unwell from COVID-19 symptoms and had been advised to self-isolate at home. The Respondents’ solicitors had also been in a recent meeting with Mr Mackie and were therefore self-isolating.

Following receipt of these written submissions, Judge Jones requested the parties to attend a Skype case management hearing on 26 March 2020 to consider the Respondents’ application for an adjournment. The evening before the case management hearing, the Respondents’ solicitor filed and served a witness statement explaining that Mr Mackie’s symptoms had worsened such that he (Mr Mackie) was worried that he could not prepare or participate in the trial or give proper instructions in his current state.

What did the Court decide?

At the outset, Judge Jones made it clear that his decision (on the question of an adjournment) would be made on the basis that the trial must be fair and any injustice must be avoided. The judge also said that he needed to take into account the Remote Hearings Protocol (COVID-19)[1] and reference was made to the judgment of Teare J in National Bank of Kazakhstan & Others v The Bank of New York Mellon & Ors (19 March) and the pronouncements of the Lord Chief Justice.[2]

Judge Jones reiterated the default position that trials should now be conducted remotely and said that it is “…the duty of all parties to seek to co-operate to try and achieve that result.” Of relevance, he stated:

“There should be, in principle, no difficulty setting up a remote trial and any difficulties that might arise should normally be capable of being worked through in the period leading up to and/or during the hearing. It is key that the trial can be recorded, but that should be achievable and there is a new Practice Direction. There is no doubt that we are all learning how best to use this technology.  However, overall, the technology is not difficult to apply and it is a feature that an advantage of it is that time is not such a relevant factor to the trial and there is greater flexibility now travel is irrelevant.” 

Dealing with each of the Respondents’ points, Judge Jones decided as follows:

  1. As to the different locations of participants and self-isolation, the judge did not accept that this would, in principle, lead to communication problems: “I take the view that instructions can be taken without anyone hearing them during the trial, using mute on Skype and mobile phones, either directly or through apps. Indeed, visual communication can be maintained. Whilst self-isolation and vulnerability are, of course, important, the whole reason for remote hearings is to achieve self-isolation protection. Remote hearings, as such, should not present a problem.”
  2. A legal teams lack of previous experience in remote hearings or insufficient time to learn is not a good enough reason not to procced: “Solicitors are going to have to act quickly. They need to practise Skype and put in place procedures to enable them to be effective trial lawyers… I return to the fact that this is not difficult technology. Nor should it be difficult to organise an electronically presented defence.”
  3. On the case being document-centric: “… this can be organised with the assistance of the lawyers and with appropriate directions that can be given for the purposes of the trial. It seems to me that a trial can be managed so that everyone will be at ease during the hearing and able to follow what is occurring.”
  4. On adequate space to participate in the trial from home: “I think one has to be realistic about space. I find it very difficult to accept that there will not be space to follow the trial and give instructions by phone, subject to individual circumstances concerning families and individual accommodation.”
  5. On young children and family members in participants’ homes: “I am satisfied, however, from this hearing, and I need not go into this in personal detail, that the measures that can be put in place will alleviate the problems that young children can cause. I am satisfied that through discussion between counsel/solicitors, we can achieve the appropriate measures.” [3]
  6. On Mr Pearson’s poor internet connection: “I do not anticipate that those matters cannot be resolved. For example, one can easily enter contractual arrangements to obtain a short‑term good internet connection and I am sure that can be done whether through businesses such as “my wi-fi”, BT or others. I will be surprised if solicitors cannot assist whether by providing equipment or guidance.”
  7. On difficulties of counsel due to personal commitments/problems: At the moment, I favour the analysis that counsel is to decide whether to accept or to return the brief if problems mean they cannot fulfil the brief. The court would then need to address whether the trial can go ahead in those circumstances; but that is not the position before me.”

Directions issued by the Judge

Subject to the question of Mr Mackie’s health, Judge Jones was of the view that the trial should go ahead, with appropriate case management directions. In particular, the judge directed that:

  1. Opening submissions could be pre-recorded and delivered to the judge ahead of the scheduled start of the trial, thereby allowing the trial itself to start two days later (affording Mr Mackie two additional days for his health to improve).
  2. Cross-examination could be spread over the two remaining ‘live’ days, with arrangements to then be put in place for closing submissions.
  3. The Respondents’ solicitors were asked to update the court on 30 March 2020 as to Mr Mackie’s COVID-19 symptoms and medical condition generally, in particular on his ability to give instructions, following which Judge Jones said he would make a final decision as to whether the trial could proceed as scheduled.
  4. If the trial was not able to proceed as scheduled in the week commencing 30 March 2020 (due to Mr Mackie’s ill health), Judge Jones indicated a willingness on his part to sit during the week commencing Easter Monday to hear the trial remotely (subject to Counsel’s availability).

On Monday 30 March 2020, the Respondents’ solicitor filed a further witness statement stating that Mr Mackie’s health had, in fact, further deteriorated. In the circumstances, and in light of the ill health of Mr Mackie, which, it was said by the Respondents’ solicitor, would affect Mr Mackie’s ability to give instructions and be physically well enough to give evidence, Judge Jones adjourned the trial. It has, however, has now been relisted for a three-day hearing starting on 27 April 2020.

What are the practical implications of this case?

This case highlights innovative approaches taken by the court in furtherance of the Remote Hearings Protocol. Specifically, the judge in this case took a number of progressive steps, including a willingness to hear evidence outside normal court hours (in the evening if necessary) and/or sit during the week commencing Easter Monday.

The case also throws a spotlight on the question of adjournments due to a party’s ill-health from COVID-19 symptoms. Pre-COVID-19, such an application for an adjournment on medical grounds would have necessitated supporting evidence from the treating medical consultant, setting out details of their familiarity with the party’s medical condition, details of all recent consultations, details of the medical condition and why it prevented the party from attending trial. This, of course, is unlikely to be possible when a party is suffering from COVID-19 symptoms, due to government guidelines requiring self-isolation, and the consequent difficulty for the afflicted individual to obtain such a GP / consultants’ certificate. In this case, the evidence supporting the adjournment application was provided to the court by the Respondents’ solicitor[4]. It remains to be seen how the courts will tackle this issue of adjournments on medical grounds if more applications to adjourn are brought on the basis of a party’s ill health from COVID-19 symptoms.

A link to the judgement in Joint Liquidators of Smith Technologies Limited (in liquidation) v Pearson and Mackie (26 March 2020) can be found here.

[1] The Civil Justice in England and Wales Protocol Regarding Remote Hearings published 20 March 2020 (“the Remote Hearings Protocol”). (Note, although the version dated 20 March 2020 was relevant to this case, the Remote Hearings Protocol was itself updated again on 26 March 2020).

[2]The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one, or all participants attending remotely.”

[3] Indeed, during the course of argument, Judge Jones said that the trial could, if needed, be part heard in the evening (after children were in bed): “I would also say that we will have incredible flexibility with regard to the timing for that particular or any cross-examination… I do not suggest that I am welcoming this as an idea, but if, for example, one needs to wait until after 8 o’clock in the evening and have cross-examination between 8 and 11, I would be prepared to do it. I am not suggesting that is the best course, but we have that tremendous flexibility.”

[4] Exhibited to the witness statement of the Respondents’ solicitor was an ‘Isolation Note’ that Mr Mackie obtained from phoning the NHS 111 coronavirus service.

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