• The demand on the Courts to deal with the back-log of jury trials and the uncertainty surrounding the conditions existing months from now led the Court to conclude that it is in the interests of justice to grant only short adjournments.
• The Court’s approach to delays is consistent with the emphasis on access to justice promoted by the Chief Justice.
• It is not yet clear how this approach will impact on the quality and cost of trial preparation.

Justice Grice recently granted a four week adjournment for a 10 week fixture that was due to commence in September 2020, despite the Defendants seeking a six month extension.¹ The Court observed that, given the demand on the Courts to deal with the back-log of jury trials and the uncertainty surrounding the conditions which might exist five months from now, it was in the interests of justice to grant only a short adjournment.

The Defendants relied on the usual issues in seeking the extension, including a six-week delay by the Plaintiffs in serving their briefs of evidence, recently amended pleadings and ongoing discovery issues. The Judge dismissed all these factors as reasons to vacate the trial date. However, she provided a more comprehensive response to the issues the Defendants raised in relation to the impact of COVID restrictions on the hearing.

The Defendants said they intended to call a number of Australian expert witnesses who would not be able to undertake site inspections or give evidence in person.

Justice Grice noted that other jurisdictions had also grappled with how best to ensure the Courts could continue to function in the face of the COVID pandemic. She cited with approval a recent English High Court decision, Muncipio De Mariana v BHP Group Plc.² It sets out in detail the principles governing the approach to be taken in the current COVID climate, best summarised by this statement:

… [it] can expect those involved to roll up their sleeves or to go the extra mile to address the problems encountered in the current circumstances. It is not enough for those involved to simply throw up their hands and say that because there are difficulties deadlines cannot be kept.

Justice Grice confirmed the principles articulated in Muncipio De Mariana apply in New Zealand. Whilst she acknowledged the added difficulties for litigants in the current climate, the Judge considered there was no reason why the Australian experts could not prepare and give their evidence within the short extension.

The Court also suggested the same approach applies to giving evidence remotely, if that is what experts are required to do. The possibility of credibility issues and the advantage to a party whose witnesses could give evidence in person were not reason to delay because in this case the witnesses were experienced expert witnesses, with responsibilities to the Court. There was no reason why their evidence could not be given effectively remotely.

The Court summarised its approach as:

1. A trial estimate of 10 weeks would be difficult, if not impossible, to accommodate until 2022. That would not constitute prompt administration of justice.
2. Access to technology and to work resources presented no problem. All parties were well resourced, with senior counsel acting and experienced experts retained. In addition, not only could they take advantage of remote meetings to collaborate using the technology available to them, but they were able to meet face-to-face locally if necessary.
3. The Australian based experts had access to good IT, reliable internet connections, workspaces, including laboratories, and had no restrictions on moving internally within Australia. They were professionals and should be able to adapt to working under the present conditions.
4. Recognition should be given to the fact that counsel and experts have been hampered in their preparation and that is likely to cause delays. Nevertheless, good communication options were available and with the further four-week adjournment there was over five months remaining before an October trial date.

While the Court’s approach to delays is consistent with the emphasis on access to justice promoted by the Chief Justice and not altogether surprising, it remains to be seen the extent to which this approach will impact on the quality and cost of trial preparation.

1. Capital and Coast District Health Board v Beca & Ors HC Wellington, [2020] NZHC 1083.
2. [2020] EWHC 928 (TCC).

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