Heineken Supply Chain BV v Anheuser-Busch Inbev SA (Rev 1)

When deciding whether to extend time or adjourn a listed trial during the COVID-19 pandemic, the court must balance the pandemic’s impact against the proper administration of justice. Hearings should continue remotely where this can be done safely, and parties should generally keep to directions where realistically possible without causing prejudice or injustice. A modest extension may be justified by disruption and illness, but a substantial extension requires specific evidence and must be weighed against prejudice to the other party and the efficient progress of the trial.

This was a pre-trial review in patent infringement and validity proceedings concerning bag-in-bottle technology. The trial was due to begin in a five-day window commencing on 27 April 2020.

Anheuser-Busch applied for a two-week extension for reply evidence, together with a consequential delay to the trial. Heineken resisted the application, relying on prejudice arising from the unavailability of its leading counsel and the need to maintain the existing timetable. The court considered whether the pandemic-related disruption justified the requested extension and how the trial should be organised.

1. The court applied the pandemic guidance summarised in Re Blackfriars Limited [2020] EWHC 845. As many hearings as possible should continue remotely where they can be conducted safely. A related consideration is that parties should attempt to keep to the directions timetable where realistically possible, provided this does not prejudice safety or risk injustice.
2. Paragraph 4 of Practice Direction 51ZA required the court, so far as compatible with the proper administration of justice, to take the pandemic’s impact into account when considering extensions of time, compliance with directions, adjournments and relief from sanctions.
3. The reasons advanced for a two-week extension were insufficient. The expert evidence was relatively straightforward, involved limited prior art and did not require extensive coordination. The late need to obtain material concerning arbitral awards was not shown to arise from the pandemic, and the absence of one solicitor from a substantial team could justify only a modest allowance.
4. The court also considered the approach reflected in National Bank of Kazakhstan and ors v Bank of New York Mellon and ors, namely the need to keep the public resolution of disputes going. The same objective supported maintaining the trial timetable so far as safely and fairly possible.
5. A modest extension to 17 April 2020 was justified. The trial would proceed with skeleton arguments on 27 April and evidence from 29 April to 1 May. Written closing submissions were provisionally directed for 5 May, with oral closing submissions, potentially by question and answer, on 6 or 7 May.