Municipio v BHP: Litigation and Extensions (of Time) in the Time of COVID-19

Published 30 April 2020

In Municipio de Mariana & Others (MDM) v BHP Group PLC (formerly BHP Billiton) (BHP) [2020] the court granted BHP an extension of time of 5-6 weeks to serve evidence, the consequence of which was that a hearing scheduled in early June 2020 was vacated and relisted for late July 2020.

The Setting

On 2 April 2020 Practice Direction 51ZA took effect to allow parties to agree extensions of time and to provide guidance to the court as to what to consider in respect of those applications during this COVID-19 pandemic. PD51ZA will cease to have effect on 30 October 2020. It made the following changes:

1. Parties can agree an extensions of up to 56 days (rather than 28 days) without formally notifying the court, provided it does not put a hearing date at risk;

2. Extensions over 56 days require court permission;

3. The court must account for the impact of the pandemic.

The background

The case was listed for a 7-day hearing on 8 June 2020. BHP was due to serve evidence by 1 May 2020 but applied for an extension until 19 June 2020, due to the impact of COVID-19. If granted, this would necessarily require the hearing to be vacated. BHP requested that the hearing be re-listed in Autumn 2020 when it might be more likely that it could take place in person.

The issues

The Court had to decide the following:

1. Whether an extension of time should be granted due to the effects of COVID-19 and, if so, for how long; and

2. Whether or not the hearing could be conducted, fairly, remotely.

The court’s approach

The starting point is the overriding objective and, in the current pandemic, Practice Direction 51ZA.

Having considered National Bank of Kazakhstan v Bank of New York Mellon, Re Smith Technologies and Re Blackfrairs Ltd [2020], where postponement of hearings for reasons relating to COVID-19 were refused, HHJ Eyre QC concluded that the following principles should be applied to whether or not a hearing should be adjourned if the case could not be heard, fairly, remotely:

1. Regard must be had to the importance of the continued administration of justice. Justice delayed is still justice denied even where the delay results from the pandemic.

2. The court must be prepared to hold remote hearings in circumstances where it would have been inconceivable previously

3. There is to be rigorous examination of the extent to which disputes can be resolved fairly by way of remote hearing and the ways in which such a fair hearing could be achieved.

4. Whether a fair resolution can be possible will be case-specific. An important factor in this case was that no live evidence or cross-examination was required.

In respect of question 1 and considering Heineken Supply Chain BV v Anheuser-Busch Inbev SA [2020], the court determined that applications for extension of time requested due to effects of the COVID-19 pandemic are to be determined in accordance with the following principles:

1. If achievable, keep to existing deadlines. Where not possible, permit the minimum extension of time realistically practicable.

2. Legal professionals and experts are expected to make use of modern technology, methods of remote working and “go further” than what is normally expected.

3. The court must be willing to accept material that is less polished and focused than normal.

4. The court must be realistic and avoid requiring compliance with unachievable deadlines, even with “proper effort”.

5. The court must have regard to the consequences of restriction on movement and the realities of working from home (i.e. not everyone will be working with super-fast internet, well-equipped offices and IT support teams on hand; these conditions will vary); things will take longer.

These factors must be weighed against the general position that an extension of time which results in the vacation of a hearing date will be less willingly granted than an extension that does not.

The decision

Having considered the above and noting that there were complex issues at play, substantial documentation, no live evidence or cross-examination, the court decided that:

1. BHP had demonstrated that even, when proper allowance was made for the use of technology and “extra effort”, it would require an extension of 5 – 6 weeks;

2. This was a case that was capable of being fairly determined at a remote hearing. A further delay of 3-4 months was undesirable and, given the circumstances of the pandemic, there was no guarantee that an in-person hearing could be held in the Autumn in any event.

Therefore the court granted the extension sought and re-listed the hearing for late July 2020.

The message

This case makes it clear that the legal world (including expert witnesses and other professionals involved) are to “roll up their sleeves” to address problems encountered (not just legal but technological too!) It is also an acknowledgement that it will take more hard work to get the same results and that the administration of justice is complex (now even more so), but the courts are “mucking-in” and going the extra mile to keep the administration of justice on-track; legal professionals and experts are expected to do the same. What this, rather uplifting, judgment says so brilliantly, without saying it at all is, Dig deep, keep calm, carry on - we’re in this one together.