Brazil dam collapse proceedings delayed by COVID-19, but court guidance gives hope to litigants
Brazil dam collapse proceedings delayed by COVID-19, but court guidance gives hope to litigants
Five years on from the disaster, individuals and organisations affected by the 2015 Brazil dam collapse face a delay to proceedings brought about by the Coronavirus pandemic. However, the Court’s assessment of the defendants’ recent application for an extension of time provides useful guidance for other litigants faced with COVID-19 challenges.
On 5 November 2015, two mining dams collapsed in Brazil, releasing millions of litres of toxic iron-ore into the environment. In the nearby district of Bento Rodrigues, 19 people were killed, while the water supply to hundreds of thousands of residents was polluted as the material entered the Rio Doce, causing harm along the course of that river to the Atlantic Ocean.
The various claims brought against the international defendants implicated in the dam collapse include one of the largest class actions ever brought in England, involving more than 200,000 claimants. An application by two of the defendants, challenging the English court’s jurisdiction and seeking for the claims to be struck out or stayed, was listed to be heard in June 2020. However, the defendants applied to extend time for service of their reply to the claimants’ evidence owing to the practical difficulties caused by the COVID-19 pandemic.
In considering the defendants’ application (see Muncipio De Mariana & Ors v BHP Group Plc [2020] EWHC 928 (TCC)), HHJ Eyre QC set out a number of principles to inform the answer to the question of whether a particular hearing should be adjourned if the case cannot be heard face to face owing to COVID-19, or whether instead there should be a remote hearing.
- Regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances.
- There is to be recognition of the extent to which disputes can in fact be resolved fairly by way of remote hearings.
- The courts must be prepared to hold remote hearings in circumstances where such a move would have been inconceivable only a matter of weeks ago.
- Rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved consistent with justice is needed before the court should accept that a just determination cannot be achieved in such a hearing.
- Inevitably the question of whether there can be a fair resolution by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether and if so to what extent live evidence and cross-examination will be necessary is likely to be important in many cases. There will be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote hearing.
HHJ Eyre also considered the approach to be taken to applications for an extension of time in the context of the COVID-19 pandemic.
- The objective, if it is achievable, must be to be keep to existing deadlines and where that is not realistically possible to permit the minimum extension of time which is realistically practicable. The prompt administration of justice and compliance with court orders remain of great importance even in circumstances of a pandemic.
- The court can expect legal professionals to make appropriate use of modern technology. Just as the courts are accepting that hearings can properly be heard remotely in circumstances where this would have been dismissed out of hand only a few weeks ago, so the court can expect legal professionals to use methods of remote working and of remote contact with witnesses and others.
- While recognising the real difficulties caused by the pandemic and by the restrictions imposed to meet it, the court can expect legal professionals to seek to rise to that challenge. Lawyers can be expected to go further than they might otherwise be expected to go in normal circumstances and particularly where there is a deadline to be met (and even more so when failing to meet the deadline will jeopardise a trial date). So the court can expect and require from lawyers a degree of readiness to put up with inconveniences; to use imaginative and innovative methods of working; and to acquire the new skills needed for the effective use of remote technology.
- The approach which is required of lawyers can also be expected from those expert witnesses who are themselves professionals. However, rather different considerations are likely to apply where the persons who will need to take particular measures are private individuals falling outside those categories.
- The court should be willing to accept evidence and other material which is rather less polished and focused than would otherwise be required if that is necessary to achieve the timely production of the material.
- However, the court must also take account of the realities of the position and while requiring lawyers and other professionals to press forward, care must be taken to avoid requiring compliance with deadlines which are not achievable even with proper effort.
- It is in the light of that preceding factor that the court must be conscious that it is likely to take longer and require more work to achieve a particular result (such as the production of evidence) by remote working than would be possible by more traditional methods.
- The court must have regard to the consequences of the restrictions on movement and the steps for working from home which have been taken to address the pandemic.
- Those factors are to be considered against the general position that an extension of time which requires the loss of a trial date has much more significance and will be granted much less readily than an extension of time which does not have that effect.
While HHJ Eyre QC allowed the defendants extra time to serve evidence because of the pandemic and the hearing date was put back, he did not accept that a lengthy adjournment was necessary and the matter was re-listed for July.
HHJ Eyre QC’s judgment should serve as a caution to those parties involved in legal action who might seek to exploit the current Coronavirus crisis to delay or frustrate the legal process. While the courts must clearly consider the impact of COVID-19 on a party’s ability to comply with an order or other obligations, the case of Muncipio De Mariana builds on a number of other authorities such as Re Blackfriars Ltd [2020] EWHC 845 (Ch) and Heineken Supply Chain BV v Anheuser-Busch Inbev SA [2020] EWHC 892 (Pat), which demonstrate the expectation that parties will seek ways to work around current problems to ensure the continued administration of justice.