We now have some clarity: the High Court in Blackfriars Ltd, Re  emphatically stated that trials will not be adjourned where the matter can be heard using electronic means.
On 1 April 2020 One Blackfriars Limited applied to adjourn the trial of their claim against former administrators. The trial is due to take place over five weeks starting in June 2020.
The company argued that to proceed with the trial would be inconsistent with the Government’s instruction to stay at home except for very limited purposes, issued on 23 March 2020 – the so-called lockdown. They said it would expose the parties and others working behind the scenes.
Although technology is available, One Blackfriars Limited contested that it was untested over a five week period. The technological challenge would lead to a real risk of unfairness in conducting a trial.
However, the former administrators argued that far from being inconsistent with Government instructions, to proceed with the trial would comply with both the primary legislation enacted in response to the COVID-19 crisis and specific guidance given to the civil courts. These both make clear that the appropriate response is to proceed with as many hearings as possible using tested video and remote technology, already successfully deployed in some areas. This, they said, would not lead to unfairness.
The court’s decision
The court agreed with the former administrators that the primary legislation and specific guidance would enable the matter to be heard using video and audio technology.
The new Practice Direction 51Y entitled Video or Audio Hearings During Coronavirus Pandemic, published on 25 March 2020, provides for the conduct of hearings by video and audio, and where required, hearings in private. Section 71(1) of the Senior Courts Act 1981 provides that: "Sittings of the High Court may be held, and any other business of the High Court may be conducted, at any place in England or Wales."
The court also held that where an order is made pursuant to the Remote Hearings Protocol, the Coronavirus Regulations permit a witness to travel to a solicitors' office or to any place equipped with a high-quality video link to give evidence if necessary – because that would amount to a ‘reasonable excuse’ to leave their home. Likewise, counsel could do the same thing to make submissions if necessary.
In fact, the court said that the Coronavirus Regulations would even permit an employee of a remote trial service provider to travel to any location (including a witness’s home) to assist with the set-up and oversight of the operation of a remote trial technology if necessary. The court had faith that everyone involved in such an operation would have the common sense to ensure that the social distancing rules were followed.
The court concluded that parties should be preparing for trial as it had already been listed, and ordered that they cooperate in exploring ways in which a fully remote trial could take place safely.
There had been scepticism and confusion as to whether the Government restrictions would lead to a spate of adjourned hearings. Advocates required to appear before a court or tribunal (remotely or in person), as well as other legal practitioners required to support the administration of justice such as barristers, solicitors, legal executives, paralegals and others who work on imminent or ongoing court or tribunal hearings were consequently classified as key workers.
The new Practice Direction 51Y entitled Video or Audio Hearings During Coronavirus Pandemic provides welcome clarity for the conduct of hearings by video and audio, and where required, hearings in private. The court in the Blackfriars case clearly had no doubt that this Protocol could operate safely alongside the current Coronavirus Regulations, and expected parties to cooperate and use common sense rather than attempt to cause confusion and delay.
The default position is therefore now that a hearing should be conducted remotely. It is incumbent on the parties and practitioners to make arrangements to ensure that such hearings can take place. The court has shown it will do what it can to ensure that hearings and trials are not unnecessarily adjourned or delayed as a result of the coronavirus crisis, and expects parties to do the same.
If you have ongoing court proceedings that you think may be affected by the coronavirus outbreak, or if you have a claim you wish to proceed (or need to defend), please get in touch with one of the team and we’ll be happy to discuss.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2020.