Bilta (UK) Ltd & Ors v SVS Securities Plc & Ors

Applications to adjourn a trial because of pandemic-related concerns must be determined through a holistic case-management assessment of whether the trial can be conducted fairly and properly. The court must weigh the importance of oral evidence and cross-examination against public-health risks, available safeguards, technology and the interests of all participants. Remote evidence is ordinarily second best where honesty and credibility are central, but it may nevertheless be fair. Guidance concerning remote hearings informs, but does not determine, the judge’s discretion. A significant commercial trial should proceed where robust arrangements can secure a fair hearing. The mere unavailability of one witness, where hearsay evidence is admissible and the issue could have been raised earlier, did not justify adjournment.

The claimants, Bilta (UK) Limited and others, brought a dishonest-assistance claim against several defendants. Only the fifth defendant, Tradition Financial Services Ltd, remained active. The trial had previously been adjourned because of the COVID-19 pandemic and was listed to begin on 25 January 2021.

The fifth defendant sought a further adjournment. Three witnesses were reluctant to attend court in person because of infection concerns. A fourth witness was medically unable to attend, although her evidence had been admitted under a hearsay notice. The central issue was whether the trial could fairly and properly proceed through a tightly managed hybrid or remote arrangement.

1. Application refused. The trial was to proceed, subject to stringent case management.
2. The question whether to adjourn was inseparable from the question how the trial could be conducted. The court rejected a sequential approach which treated in-person, remote and adjourned hearings as separate alternatives. The options and their consequences had to be assessed holistically.
3. The decision involved a broad, fact-sensitive discretion. Relevant considerations included the importance and nature of the issue, urgency, representation, the parties’ ability to participate, whether evidence was oral or written, the nature and source of the evidence, the scale and duration of the hearing, available technology, the court’s experience of remote hearings, and safe alternatives to physical attendance. The list was not closed.
4. Re A (Children) [2020] EWCA Civ 583 provided useful guidance, but guidance could not abrogate the judge’s responsibility to determine whether the particular hearing would be fair. The importance of oral evidence under cross-examination, described in R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin), meant that in-person evidence was the preferred standard, especially where honesty was in issue. It did not make remote evidence impermissible.
5. A carefully controlled hybrid hearing could address the witnesses’ concerns. The proposed measures included use of a large courtroom, limited attendance, physical distancing, controlled witness access, reduced footfall, specified witness times, remote transcription and appropriate technical support. The witnesses had identified no insuperable obstacle to giving evidence remotely.
6. The judge therefore rejected the contention that anything other than an in-person hearing would necessarily be unfair. The judge was prepared to receive the three witnesses’ evidence remotely if required, while recognising that this was second best and was being considered because of the pandemic circumstances.
7. The separate unavailability of the fourth witness did not justify adjournment. Her evidence had already been admitted under a hearsay notice, and the application had not been made when her medical position first became known. Taking her prospective future availability into account did not alter the conclusion.
8. The court emphasised that the analysis was fact-specific and concerned a commercial claim for money. A case involving consequences of a different order might require a different assessment.