knowledge | 15 April 2020 |
COVID-19: €1.64 Billion Dispute not Sufficiently Urgent to be Allowed to Proceed
A recent ruling of the High Court illustrates the difficulties faced by litigants during the current public health crisis.
In Perrigo Pharma International DAC v McNamara,1 the applicant challenged by way of judicial review an assessment to tax of €1.64 billion by the Revenue Commissioners. Before the onset of the current crisis, the proceedings had been listed for hearing on 21 April in the Commercial Court. However, since then, virtually all court business except for very urgent matters has been put on hold and cases have been adjourned.
Notwithstanding these restrictions, the applicant applied to court for the case to proceed on 21 April, stressing the importance of the proceedings for it and the prejudice that it would suffer if the hearing was unnecessarily delayed. The applicant sought a physical hearing on 21 April but proposed various restrictions, designed to make that hearing safer. These included:
- A restriction on the number of persons attending court with social distancing in place;
- A daily confirmation from each legal team, as well as the judge and the court registrar, that none had symptoms of COVID-19 and had not been exposed to the virus. If any person was affected by the virus, the parties could seek an adjournment of the trial for the shortest period necessary;
- Arrangements to enable instructions to be taken from solicitors and clients;
- A hearing in the largest available courtroom in the Four Courts with restrictions on attendance and with a limited number of the press entitled to attend, subject to the direction of the trial judge;
- The parties’ clients would not be in court;
- The courtroom would be deep cleaned daily by the Courts Service.
The Revenue solicitors did not agree to the proposal. They also pointed to the significant health risk in allowing the case to go ahead; the closure of their offices and consequent inability to prepare for the trial; possible privacy issues concerning a person's health status; and the changing nature of the public health emergency which could continue to deteriorate.
Barniville J acknowledged that the action would not require the attendance of witnesses but ultimately decided against the physical hearing going ahead. He pointed to movement restrictions and social distancing requirements; the extremely onerous obligations on the Courts Service and others in facilitating the physical hearing; and the demands placed by very urgent cases on court resources during the public health crisis which restricted the court’s ability to deal with long cases such as the one at hand. He was also not satisfied that the case reached such a level of urgency and importance that it must proceed notwithstanding the current public health restrictions.
He adjourned the matter giving the parties liberty to re-enter it for hearing at a later date including by way of remote hearing once arrangements for these hearings had been put in place in the Commercial Court.
This case demonstrates the very real dilemmas that COVID-19 presents for litigants. The advent of remote hearings in the upcoming legal term may provide a solution for some, particularly in documents-based cases. However, as Barniville J also acknowledged in this ruling, remote hearings are not suitable for all and it is inevitable that some parties will face significant delay as a result of the current pandemic.
-  IEHC 169.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.