To adjourn or not to adjourn? – an update
23 Apr 2020
On 17 March, the Lord Chief Justice announced that “in all jurisdictions steps are being taken to enable as many hearings as possible to conducted”. The emphasis was on “business as usual”. However, the experience of many on the ground in the first few weeks of lockdown was that the Courts were automatically adjourning every hearing. As we have all adjusted to the “new normal”, what approach are the Courts now taking to applications to adjourn?
On 25 March, in Conversant Wireless Licensing Sarl v Huawei Technologies Co Ltd, Hacon J acceded to the Defendant’s suggestion that the trial be adjourned in light of Covid-19, despite the Claimant’s suggestion that the trial could be dealt with on the papers. Hacon J cited the need for trials to be conducted and judgments to be given in public, and the need for oral evidence as the reasons for his decision.
After two weeks of wholesale adjournments, the Companies Court Winding-Up List proceeded remotely on 1 April, and continues to do so.
On 1 April, John Kimbell QC heard an application by the joint liquidators of One Blackfriars Limited to adjourn the trial of their claim against the former administrators of the company, listed for a five week hearing in June. That application was refused for a number of reasons. First, the Coronavirus Act and the Coronavirus Regulations indicate that the legislature intends the work of the civil courts to continue with the assistance of technology. Second, the health and safety concerns highlighted were not sufficient to justify an adjournment. Third, the technological challenges of conducting the trial could be surmounted with co-operation between the parties. Fourth, any prejudice would be suffered equally by both parties. Finally, it was not essential to have the judge, witnesses and Counsel in the same physical space, bearing in mind the nature of the issues.
On 9 April, it was announced that Mostyn J had conducted a difficult and sensitive welfare case in the Court of Protection via Skype. Notably, all of the parties consented to proceeding in that way.
Today it was reported that the Lord Chief Justice, Master of the Rolls and President of the Family Division wrote to Circuit and District Judges in the civil and family courts last week. In their joint message, it was confirmed that the opposition of all parties to a remotely-conduct final hearing would be a “very powerful factor” in considering whether to grant an adjournment. Equally, unanimous consent to the final hearing proceeding remotely is not necessarily to be viewed as a “green light” to the use of such procedures.