Adrian Charles Hyde and Kevin Anthony Murphy (Join Liquidators of One Blackfriars Ltd) v Anthony David Nygate (in his capacity as representatives of the estate of James Joseph Bannon) and Sarah Megan Rayment (The Former Joint Administrators of One Blackfriars Ltd)
| Jurisdiction | England & Wales |
| Judge | John Kimbell QC,John Kimbell |
| Judgment Date | 06 April 2020 |
| Neutral Citation | [2020] EWHC 845 (Ch) |
| Date | 06 April 2020 |
| Docket Number | Case No: CR 2017-007339 |
| Court | Chancery Division |
[2020] EWHC 845 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
INSOLVENCY AND COMPANIES LIST (CHD)
IN THE MATTER OF ON BLACKFRIARS LIMITED (IN LIQUIDATION)
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
Mr John Kimbell QC sitting as a Deputy High Court Judge
Case No: CR 2017-007339
Simon Davenport QC and Tom Poole (instructed by Humphries Kerstetter) for the Claimants
Justin Fenwick QC and Ben Smiley (instructed by Mayer Brown) for the Respondents
Hearing dates: 1 April 2020
John Kimbell QC, sitting as a Deputy High Court Judge
Re One Blackfriars Limited
At a pre-trial review held last Wednesday, 1 April 2020, the Applicants, who are the joint liquidators (‘ the Joint Liquidators’) of One Blackfriars Limited (‘ OBL’), applied to adjourn the trial of their claim against the former administrators of the company (‘ the Former Administrators’) which is due to take place over five weeks in June this year. They say that the adjournment is a necessary response to the restrictions introduced by the Government initially on 16 March 2020, and then in a significantly more stringent terms on 23 March 2020 to deal with the COVID-19 pandemic.
I informed the parties that in the event that the application was successful, the earliest that the trial could be rescheduled for was early 2021, and the earliest that the case could enter the general list in the Chancery Division was June 2021.
At the PTR, I refused the application to adjourn and ordered the parties to co-operate to explore ways in which a remote trial, involving an internet-based video communication platform and an electronic trial bundle, might proceed. I also ordered that the practical arrangements for any such trial to be reviewed at a second PTR now fixed for 21 April. However, in light of the full submissions made by both parties at the pre-trial review and the need to deal with practical trial preparation matters at that hearing, I indicated that I would give my reasons today for refusing the adjournment.
Background
The Joint Liquidators claim damages of over £250 million for the alleged mishandling of the administration of OBL between 14 October 2010, when the Former Administrators were appointed, and 14 December 2011, when the sale of the OBL's main asset completed. It is alleged that the asset was sold at an undervalue and that had the Former Administrators complied with their duties a corporate rescue of OBL may have been achieved.
A five-week trial of liability and damages issues is due to begin in the week commencing 8 June. The trial was set down as long ago as November 2018 and it involves four live witnesses of fact and 13 expert witnesses. The joint liquidators are represented by Humphries Kerstetter LLP and the former administrators are represented by Mayer Brown International LLP. The application to adjourn was made orally by Mr Davenport QC at the pre-trial review itself, without an application notice or any witness statement evidence in support. However, reasonable notice of the basis of the application was given by Humphries Kerstetter to Mayer Brown in a letter dated 27 March, that is to say, the Friday before the pre-trial review on Wednesday last week.
The detailed grounds relied upon by the Joint Liquidators were set out in the skeleton argument filed the same day, and the Former Administrators' position was that they did not consider that an adjournment was either appropriate or necessary.
The Former Administrators' substantive response to the application was set out in a supplemental note served on 31 March, and this was accompanied by a witness statement from Mr Oulton. This witness statement was largely concerned with providing evidence to the court of the technological options available to facilitate a remote trial. The Joint Liquidators for their part responded with a supplemental note of their own, maintaining their position that an adjournment was appropriate and necessary.
The form of the application
The absence of an application notice and supporting witness statement was regrettable and it led to a large amount of evidence being adduced very informally by means of skeleton argument and oral submissions at the PTR itself. However, be that as it may, both parties, it seems to me, found themselves adjusting to a very fast-moving situation, and I am satisfied that no significant unfairness was caused to the Former Administrators by the absence of an application notice and a witness statement in support of the application. The application was fully argued at the PTR.
There is one further preliminary matter I want to deal with before I turn to the substance of the application. There was a suggestion made in correspondence by Mayer Brown that the application to adjourn was being made because the Joint Liquidators had lost faith in their own case and had seized upon the COVID-19 pandemic as a means to put off the trial. Mr Davenport was at pains to stress that this was not the case, and he said that the application was made in good faith because of the COVID-19 crisis and for no other reason. Mr Fenwick QC, who appeared on behalf of the Former Administrators, did not adopt this particular point in his submissions and I accept what Mr Davenport says about it. Having read the skeleton arguments and heard his oral submission as to why the application was made, I am more than satisfied that it is entirely due to real concerns whether a trial can take place safely and not for tactical reasons.
I turn now to the rival submissions.
The Joint Liquidators' submissions
Mr Davenport submitted in summary, as follows:
a. To proceed with the trial would be inconsistent with the Prime Minister's instruction to stay at home except for very limited purposes, issued on 23 March 2020, and more commonly referred to as the ‘Lockdown’.
b. The trial, he submitted, cannot proceed without exposing participants and others working behind the scenes to an unacceptable risk to their health and safety.
c. The technological challenge posed by a five-week trial was too great. Such technology, as exists, he said, was untested.
d. There is a real risk of unfairness or potential unfairness in conducting a remote trial of this claim.
Mr Fenwick in response submitted in summary as follows.
a. Far from being inconsistent with Government instructions, to proceed with the trial would be fully in accordance with both the primary legislation enacted in response to the COVID crisis and specific guidance given to the civil courts, both of which make clear that the appropriate response is to proceed with as many hearings as possible using video and remote technology.
b. A properly arranged remote trial could proceed without endangering the safety of the individual participants or the public.
c. The technology to conduct a fully remote trial is already available and has been successfully deployed already in some cases.
d. Whilst a remote trial will present challenges to all involved, it would not lead to unfairness.
e. The application was in any event premature because the parties have not yet had an opportunity to explore all of the remote technology options for a trial which, after all, is not scheduled to take place for another ten weeks.
Jurisdiction
Before dealing with those submissions, I had better just say something about jurisdiction. It is common ground that the court's jurisdiction to adjourn (or indeed to bring forward) a hearing is contained in CPR 3.1(2)(b). This is a wide discretionary case management power which must be exercised in accordance with the overriding objective over dealing with cases justly and at proportionate cost.
I will now deal with the four submissions relied upon in support of the application
(1) Alleged inconsistency with Government Instructions
The Prime Minister's address to the nation on 23 March 2020, in which he instructed all of us to stay at home to help the NHS save lives, has had a drastic effect on the life of the country. All but essential travel is prohibited and social gatherings are severely curtailed. The Prime Minister's instruction has been translated into enforceable legal provisions in the Coronavirus Act 2020 (‘ the Coronavirus Act’). The Act came into effect on 25 March. It contains wide powers to issue directions relating to events, gatherings, premises, to postpone elections and to suspend the operations of various entities.
In Sections 53 to 56 it makes provision specifically in relation to the operation of courts and tribunals. The heading of the section is “Courts and Tribunals: Use of Video and Audio Technology”. Unlike many of the other sections in the Act which give the Government power to postpone or suspend particular areas of activity, these sections are not in that form. Rather sections 53 – 56 provide for an expansion of the use of live links in criminal proceedings and, in relation to civil proceedings, for public participation in proceedings conducted remotely by video or audio. Schedule 25, as Mr Fenwick pointed out, makes detailed amendments to the Courts Act 2003 to enable the public to see and hear proceedings conducted wholly as an audio or video proceedings and to regulate the recording of those proceedings.
In my judgement, Mr Fenwick's submission that these provisions of the Coronavirus Act itself are a strong indication that the legislature intends that work of the civil courts to continue with the aid of greater use of video and audio technology is well founded.
Mr Fenwick's submission is further supported by...
To continue reading
Request your trial
-
Mehmet Arkin (as Fixed Charge Receiver of Lodge Farm) v Gary Ronald Marshall
...2 All ER 175, CANational Bank of Kazakhstan v Bank of New York Mellon (unreported) 19 March 2020, Teare JOne Blackfriars Ltd, In re [2020] EWHC 845 (Ch)R v Secretary of State for the Home Department, Ex p Simms [1999] UKHL 33; [2000] 2 AC 115; [1999] 3 WLR 328; [1999] 3 All ER 400, HL(E)Roy......
-
Adrian Charles Hyde v Antony David Nygate (in his Capacity as Representative of the Estate of James Joseph Bannon, Former Joint Administrator of One Blackfriars Ltd Appointed Under Cpr R 19.8(1))
...issues relating to loss of chance, damages or causation. 467 The JLs' claim is dismissed in its entirety. 1 [2019] EWHC 1516 (Ch) 2 [2020] EWHC 845 (Ch) 3 “Discretion” (1973) 9 Irish Jurist (New Series) 1, 10, quoted in Devlin, The Judge (1979) p63 and Bingham, “The Judge as Juror: The Ju......
-
David Huber v X-Yachts (GB) Ltd
...with section 71(1) of the Senior Courts Act 1981 may be anywhere in England and Wales, including the judge's home: see Re Blackfriars [2020] EWHC 845 (Ch) at [37] (per Mr John Kimbell QC sitting as a judge of the High Court). The absence of any difficulty with section 71(1) of the 1981 Act......
-
Muncipio De Mariana & Others v BHP Group Plc (formerly BHP Billiton)
...to allow those problems to be dealt with. The Court will be willing to provide case management directions.” 22 In Re Blackfriars Ltd [2020] EWHC 845 (Ch) John Kimbell QC sitting as a deputy judge addressed an application made on 1 st April 2020 in the context of the Covid-19 pandemic to ad......
-
Complex Commercial Litigation Law Review - Fifth Edition - England & Wales
...Working Pilot Scheme and Civil Procedure Rules, Practice Direction 51V – e Video Hearings Pilot Scheme.7 Re Blackfriars Ltd [2020] EWHC 845 (Ch)© 2022 Law Business Research England and Wales71a oer;b acceptance;c consideration;d an intention to create legal relations; ande certainty of te......
-
COVID-19 Professional Services: Legal And Practical Issues In Relation To Client Work
...commercial litigation involving numerous and/or overseas witnesses (for reported cases see: Re One Blackfriars Ltd, Hyde v. Nygate [2020] EWHC 845 (Ch)). This approach has been supported by the Coronavirus Act 2020, Regulations and the three new Practice Directions issued by the Courts. The......
-
Remote Hearings In The Time Of Covid-19
...liquidators of One Blackfriars Ltd) v Nygate (in his capacity as representative of the estate of James Joseph Bannon) and another [2020] EWHC 845 (Ch) agreed the respondent's submissions and refused to adjourn a five-week trial of a claim by joint liquidators against former administrators o......