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COVID-19 - no reason for the wheels of justice to slow or stop turning


United Kingdom

The COVID-19 pandemic has shaken up the world in ways which only weeks ago would have been unthinkable, and many industries have had to overhaul their practices as a result.  The legal sector is no exception, and lawyers and the courts have been endeavouring to ensure, as far as possible, that hearings and trials can continue to take place with minimal disruption.

In Heineken Supply Chain BV v Anheuser-Busch Inbev SA [2020] EWHC 892 (Pat), Daniel Alexander QC (sitting as a deputy judge of the Patents Court) considered an application for an extension of time on the ground of disruption caused by COVID-19, and a consequential dispute over trial dates, and applied several principles of general relevance.

The proceedings between Heineken and Anheuser-Busch Inbev (ABI) concern a claim by ABI for infringement of patents relating to "bag-in-bottle" (BiB) technology, which involves the use of compressed air to dispense a drink out of a collapsible inner bag housed in a pressure-resistant outer container.  ABI's patents relate specifically to a process whereby the inner and outer layers of the BiB are blow-moulded simultaneously from a two-layer “preform”.  Heineken denies infringement, challenges the validity of the patents and advances a defence of "deemed consent" alleged to arise from an earlier Belgian judgment.
The parties agreed that the main trial, scheduled to begin in a five-day window commencing on 27 April 2020, should go ahead despite the disruption caused by COVID-19.  However at the PTR, ABI proposed an extension of approximately two weeks to the deadline for service of reply evidence.  As this deadline would have fallen only two working days before the start of the trial window, ABI also proposed delaying the start date of the trial by a week.  These timetable changes were resisted by Heineken.
General principles

While Mr Alexander recognised that in ordinary circumstances ABI's proposals would be difficult to justify, he acknowledged that we do not live in ordinary times and that the proposals would have to be considered in the light of the current COVID-19 crisis.
Mr Alexander referred in his judgment to Re Blackfriars Limited [2020] EWHC 845, which summarised recent guidance on dealing with cases in the light of COVID-19 as follows: "as many hearings as possible should continue and they should do so remotely as long as they can be done safely".  He further considered that there was a corollary of that approach, namely that it is desirable where cases have been listed, that attempts are made to keep to the directions timetable where it is realistically possible to do so, without prejudicing safety or risking injustice as a result.  It was against this background that Mr Alexander applied paragraph 4 of new Practice Direction 51ZA (Extension of time limits and clarification of Practice Direction 51Y - Coronavirus), which provides:
"In so far as compatible with the proper administration of justice, the court will take into account the impact of the COVID-19 pandemic when considering applications for the extension of time, for compliance with directions, the adjournment of hearings and applications for relief from sanctions."
Deadline for reply evidence

As justification for its application to extend the deadline for reply evidence, ABI cited the disruption caused by the lockdown and, in particular, the difficulties caused by the impossibility of face-to-face meetings and the inability of lawyers and experts to consider relevant documents in the same room, as well as the fact that its solicitors had been working remotely from 18 March.  Heineken, on the other hand, pointed out that it was ready to exchange its reply expert evidence on time, notwithstanding that it had been subject to the same general disruption.
Mr Alexander, noting the impact of the COVID-19 crisis on individuals' professional and personal lives, considered that there was some substance in ABI's arguments and recognised that preparing documents and evidence had been made somewhat harder.  As against that, however, the proposed evidence in question was directed to a relatively straightforward set of patents and ABI's evidence-in-chief had already considered the prior art in considerable detail.  Accordingly, the degree of additional time required for reply evidence was inevitably more modest and the corresponding need for more time as a result of COVID-19 related disruption was correspondingly limited. 
ABI also relied on the fact that a senior member of its solicitors' team had suffered COVID-19 symptoms and was therefore unable to work on reply evidence for several days.  Mr Alexander noted that this was of course regrettable and that the solicitor concerned had fortunately recovered.  However, he further took into account that the absence of one member of a large and experienced legal team for a few days could not justify a two-week extension.  There were other solicitors available and the reply evidence ought in any event to require less lawyer involvement since, by the reply evidence stage, an expert should be familiar with the manner in which reports need to be prepared and therefore require less outside assistance with drafting.   However, Mr Alexander nevertheless took the absence of the solicitor into account as justifying a modest extension of time.
Taking the above matters into consideration, Mr Alexander was satisfied that a two-week extension for reply evidence had not been justified, and that to push the trial back as far as ABI's original proposal would cause prejudice to Heineken.  However, he was prepared to allow a modest extension of just over a week, principally to take account of the general disruption and distractions caused by the pandemic and the unavailability of one of ABI's solicitors.  He considered that this would not have a significant impact on the trial or the parties, and would be in accordance with the requirements of PD51ZA.  He also bore in mind that the nature of the proposed expert evidence was such that what may be lost in polish as a result of having fewer hours devoted to it by lawyers may be gained in raw authenticity, as well as the fact that the more limited time would encourage confining the evidence to that which was truly essential.  
Timing of the trial

On the timing of the trial, Mr Alexander considered that this was not a case in which the skeleton arguments were likely to significantly develop the case beyond the content of the evidence.  In those circumstances, he did not consider it would be unduly prejudicial to either side to require skeletons to be provided on 27 April and for evidence to be heard from 29 April to 1 May.  
Mr Alexander also considered it appropriate for there to be a slightly more extended timeline for the provision of closing submissions and directed provisionally, subject to further debate at the conclusion of the evidence, that written closing submissions should be provided on 5 May and that there be oral closings on 6/7 May, which may take the form of a question and answer session, but may be more substantial, depending on the nature of the evidence in question.  In his view, extending the time for written closings after the evidence was also likely to provide a greater advantage than having a more extended pre-trial period to develop arguments that needed to be developed. 

Until the government lifts the present lockdown measures, there will inevitably continue to be disruption to professional and personal lives.  While the courts have been quick to recognise the impact of this disruption on ongoing proceedings, and will allow some flexibility as a result, the overriding considerations will always be the proper administration of justice and any injustice which may be caused by allowing unduly lengthy extensions of time or adjournments.  Mr Alexander summarised the approach as follows:
"I am here also prepared to accept that the impact of the changes required in professional and personal life merits a degree of accommodation in deadlines, where that can be done without causing undue difficulty. …  The guidance to which I have referred strongly suggests that, where it can be safely done and without risks to the integrity of the legal process, the wheels of justice should keep turning at their pre-crisis rate.  It is not unreasonable to expect that lawyers concerned in keeping cases on track may need on occasion to push a little harder to enable that to be achieved".
The introduction of PD51ZA on extension of time limits came shortly after the introduction of another practice direction relating to the COVID-19 pandemic, namely PD51Y on video or audio hearings in civil proceedings during the coronavirus pandemic, showing that the courts have been quick to respond to the current crisis.  As part of this effort, numerous video hearings have taken place at different levels of the court system, including the first ever remote public Court of Appeal hearing on 26 March, which Fieldfisher took part in and which the Times reported on (Coronavirus could permanently alter courts).  At that hearing, the court and the parties were alive to principle of open justice, and the proceedings were made "public" by the parties circulating a link to a live transcript to anyone who requested it and providing the dial-in details for the video hearing to a journalist who had been invited by the court to "attend". 
The courts have and will continue to adjust their approach according to the disruption caused by the COVID-19 pandemic, but at the same time, it is clear that principles such as the proper administration of justice and openness will remain sacrosanct and override other competing priorities.

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