The extent of judicial determination not to allow the COVID-19 pandemic to derail the wheels of justice was revealed by the High Court’s refusal to adjourn a five-week insolvency trial which is due to take place at the height of the crisis.
The case, a £250 million claim by the liquidators of a property development company against its former administrators, had been set down for trial in June 2020. The liquidators, however, applied to adjourn the hearing on the basis that to proceed with it would be inconsistent with the Prime Minister’s instruction to the nation to stay at home except for very limited purposes.
They also submitted that, if the trial date were kept, participants and others working behind the scenes to prepare for the hearing would be exposed to unacceptable risk to their health and safety. The technological challenge of holding the trial remotely was said to be too great and there would be a real risk of unfairness.
The Court, however, noted that a need to fulfil a legal obligation, including attending court or participating in legal proceedings, is a reasonable excuse for what would otherwise be a breach of the restrictions on movement and gatherings laid down by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
There was no difficulty in a judge hearing the case remotely from his or her home and, although a trial involving numerous lay and expert witnesses and thousands of documents clearly posed a challenge, it could be met if a proactive approach were taken on both sides. The technology needed to conduct a fully remote trial was available and had already been successfully deployed in some other cases.
There was very little concrete evidence that adhering to the trial date would risk the health of participants or the public in general. If there were immovable obstacles in the way of any witness attending the trial remotely, the parties could be expected to cooperate and propose ways forward.
Turning to the issue of fairness, the Court noted that there was an equality of arms between the sophisticated and well-resourced parties and that disadvantages and upsides of a remote trial would apply to both sides equally. A delay in the trial was in neither side’s interest and, if an adjournment were granted, the hearing date would have to be pushed back by up to a year.
