The TCC judgment in Muncipio de Mariana v BHP Group Plc (20 April) has set out some helpful principles to be adopted by the Courts when considering whether to hold a virtual hearing or to adjourn a trial because of the current COVID-19 situation. This may provide useful guidance if you have a dispute and are considering whether a virtual hearing may be the best approach to take:
- 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 a 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.
- There is to be rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved, consistent with justice, 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 is possible by way of a remote hearing will be case-specific. A multiplicity of factors will come into play. 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.
If you are seeking to resolve a dispute and are unsure if a virtual hearing can take place, the decision will undoubtedly be based on your specific circumstances – give me a call to talk it through and I would be happy to provide my best judgement.
