The High Court has ruled that a hearing related to the biggest class action in history can go ahead remotely, in another sign of judges’ acceptance of a new default position during the coronavirus crisis.
Two defendants in Municipio De Mariana & Ors v BHP Group Plc have made applications to stay proceedings and wanted their seven-day June hearing moved to the autumn. The proceedings arise out of the collapse of the Fundao Dam in Brazil in November 2015.
His Honour Judge Eyre QC delayed the hearing by six weeks but made clear it can go ahead remotely in July if the current lockdown continues.
‘A delay of a further period of three to four months is undesirable and is to be avoided if possible,’ said the judge. ‘This is particularly because as just explained there is no guarantee that an in person hearing will be possible in the autumn (nor that it will inevitably be impossible in July).’
The proceedings have previously been described by the claimants as the largest class action ever brought in England and as being of unusual scale and complexity. Around 202,000 claimants together with 520 private businesses or foundations are involved, with considerable damages sought for a large range of losses. Brazilian law will determine not just liability but causation and redress for what are described as patrimonial and moral damages. Categories of damages range from loss of earning to the effect on an entire community's heritage.
The defendants contest the case being heard in England and seek a stay of the proceedings on jurisdictional grounds. The claimants make criticisms of the approach of the Brazilian courts, the time it would take to resolve matters in Brazil and the scale of awards in Brazilian litigation.
The defendants initially sought a seven-week extension (since reduced to five or six weeks) for serving their reply evidence, saying the effects of the Covid-19 pandemic and limits on movement would double the time needed to prepare the documents. They pointed out that travel restrictions between the UK and Brazil had come into force just as they were about to collect evidence, and that remote working took much longer than traditional ways. Difficulties with working remotely were particularly acute in this case because of the volume of documents to be considered and the need for interpreters.
They sought a relisting to July or preferably the autumn, as this gave the greatest chance of holding an in-person hearing. The claimants accepted that a modest extension was reasonable but not at the expense of the June hearing, arguing that a remote hearing of the jurisdiction challenge was perfectly feasible.
The judge granted the requested extension of time for service of reply evidence, saying it would not be practicable for this to be prepared next month. He said the court must be conscious of the problems of remote working, especially if lawyers have caring responsibilities or varying qualities of internet connection.