Muncipio De Mariana & Ors v BHP Group Plc

Applications affected by the Covid-19 pandemic must be determined by reference to the overriding objective, the importance of continuing the administration of justice and the need to avoid injustice. Courts should examine rigorously whether a fair hearing can proceed remotely before adjourning it. Remote hearings should be adopted where justice permits, but the assessment is case-specific.

When an extension of time is sought, the court should preserve existing deadlines where realistically possible and otherwise grant the minimum practicable extension. Legal professionals and expert witnesses may be expected to use technology, tolerate inconvenience and adopt innovative working methods. Those expectations must be balanced against the real additional time required for remote preparation and the significance of losing a fixed hearing date.

The claimants brought extensive proceedings arising from the collapse of the Fundão Dam in Brazil. The first and seventh defendants had applied for a stay on jurisdictional and case-management grounds. A seven-day jurisdiction hearing was listed for June 2020.

The defendants sought a substantial extension of time for reply evidence because of the Covid-19 pandemic, together with vacation of the June hearing and relisting in July or the autumn. The claimants accepted that a modest extension was justified but resisted vacating the hearing, or alternatively sought a July hearing. The issues were whether the evidence deadline should be extended and whether the jurisdiction challenge could fairly be heard remotely.

1. Application granted in part. The defendants established that preparing reply evidence remotely, involving extensive documentation, Brazilian experts and interpreters, would take substantially longer than the existing timetable allowed. The extension was justified under the overriding objective and PD51ZA paragraph 4, notwithstanding the loss of the fixed hearing date.
2. The court identified the following principles for remote hearings: the continued administration of justice remains important; remote hearings can fairly resolve many disputes; courts must examine rigorously whether a remote hearing is possible; and the assessment is case-specific. The need for live evidence and cross-examination will often be significant. A hearing should be adjourned only where a fair determination cannot be achieved remotely.
3. For extensions of time during the pandemic, the objective is to keep existing deadlines where realistically possible and otherwise grant the minimum practicable extension. Lawyers and professional experts should use modern technology, accept inconvenience and develop effective remote-working methods. The court must nevertheless recognise that remote working may require more time and effort, particularly where work involves large volumes of documents, poor connections, home-working constraints or interpreters.
4. The June hearing was vacated and the jurisdiction challenge was relisted for 20 July 2020, with an eight-day estimate and pre-reading from 14 July. A further short extension was granted for service of the defendants’ reply evidence, with the precise date and consequential timetable to be settled at handing down.