COVID-19: Adjournment applications – Be prepared for hearing

The Courts Service of Ireland has scaled back and refined the activity of the Courts to assist in limiting the spread of COVID-19 by adjourning generally any non-urgent matters listed up to the Easter vacation (See our detailed briefing on the Operation of the Courts here). The Courts Service has announced the launch of a pilot scheme for remote hearings during the next term which will begin on 20 April. The scope of the pilot scheme remains unknown. All hearing dates fixed after that date remain in force, subject to applications for adjournments by the parties.

Although parties seeking adjournments for the new legal term should expect a degree of sympathy if they can demonstrate prejudice to their position because of the pandemic and associated Government restrictions, a recent High Court decision indicates that matters that have been considered sufficiently urgent to warrant entry into special case-managed lists, such as the Commercial and Strategic Infrastructure Lists are unlikely to be adjourned as a matter of course.

It appears that the further a listed hearing date is from the beginning of the new term, the less likely it is that it will be adjourned on the basis of pandemic-related disruption alone.

Background:

In Friends of the Irish Environment CLG v Minister for Communications ,Climate Action and the Environment​ [2020] IEHC ​​159 the High Court refused to adjourn a judicial review case listed for hearing on 30 June 2020, despite the impact of COVID-19 on the ability of the parties to prepare for litigation. The case had been admitted to the Strategic Infrastructure Development List, where the Court imposes strict case management timelines, in line with the practice of the Commercial Court.

The State had applied for the matter to be adjourned to a date in October, as several key employees who were likely to be involved in providing evidence in the case are currently involved in urgent work associated with maintaining the security of the State's energy supply during the course of the pandemic. It also argued that remote working practices deprived those employees of access to important physical and digital files associated with the case.

Decision:

In refusing to adjourn the 30 June hearing date (but extending the timeline for submitting key documents), the High Court emphasised several key considerations, including:

  • the substantive issues to be determined at hearing were mainly legal, rather than factual matters. Thus, extensive affidavit evidence by key employees was unlikely to be needed
  • the logistical difficulties associated with COVID-19 cannot represent an excuse for postponing the administration of justice, and everyone involved in litigation will have to adapt to the changed environment
  • the High Court has an obligation to ensure the public interest is served, and that proceedings admitted to the Strategic Infrastructure List are determined as quickly as possible, while ensuring the administration of justice

The adjournment application in the case was determined solely on written evidence and submissions made by the parties, although they were invited to apply for an oral hearing if they so wished.

A note of caution:

Although this decision represents a welcome signal of intent to proceed with scheduled hearing dates where practical, the Commercial Court has sounded a note of caution with regard to matters listed at the beginning of the next legal term. In a recent decision ([2020] IEHC 169), Barniville J granted a contested adjournment of a hearing due to commence on 21 April (the second day of the new legal term), despite noting that the matter was one of 'great importance'.

Implications:

The Courts Service's approach to the pandemic to date indicates a strong desire to return to a higher level of activity as quickly as possible. Parties with hearing dates scheduled for the new term should continue to prepare on that basis, in particular if proceedings are subject to active case management in the Commercial or Strategic Infrastructure Lists, and if they are listed for a date beyond late April.

For further information please contact Helen O'Connor, Knowledge Lawyer, Enda Hurley, Partner, Ciarán Ó Conluain, Partner, or a member of the  A&L Goodbody Litigation & Dispute Resolution team.

Date published: 15 April 2020