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Covid-19 Crisis: Largest Class Action Claim to Proceed Remotely

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The ongoing coronavirus Covid-19 crisis continues to impact on UK civil litigation hearings with a recent High Court decision meaning that the largest ever class action claim can proceed remotely. Whilst such remote hearings may be seen as a means to an end during the current lockdown conditions, once such hearings become the ‘new normal’, the impact on how civil litigation claims are conducted is likely to be huge.

The defendants in the claim in question, Municipio De Mariana & Ors v BHP Group Plc relating to the collapse of the Fundao dam in Brazil, had originally applied to stay proceedings until autumn 2020, a change of 3 months from the original hearing date set for June. The proceedings are widely thought to be the largest class action ever brought in an English court and involve around 202,000 claimants together with 520 private businesses. Compensation and damages are being sought for a wide variety of losses, from loss of individual earnings through to the wider and log-term effects on the entire area’s communities and heritage. Brazilian law is set to determine not just liability but causation and redress for what are described as patrimonial and moral damages.

Whilst agreeing to delay the hearing by 6 weeks, Judge Eyre QC was clear that should the current lockdown restrictions still apply, then the hearing will go ahead remotely. He added:

A delay of a further period of three to four months is undesirable and is to be avoided if possible…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 defendants had initially requested a 7 week extension (since reduced to 5 or 6 weeks) for serving their reply evidence, saying the effects of the Coronavirus pandemic and its subsequent impact on movement would double the time needed to prepare the documents. They added 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.

Judge Eyre 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.

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