CAPITAL AND COAST DISTRICT HEALTH BOARD v BECA CARTER HOLLINGS & FERNER LTD [2020] NZHC 1083

CAPITAL AND COAST DISTRICT HEALTH BOARD v BECA CARTER HOLLINGS & FERNER LTD[2020] NZHC 1083 [21 May 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2016-485-256[2020] NZHC 1083BETWEEN CAPITAL AND COAST DISTRICTHEALTH BOARDPlaintiffAND BECA CARTER HOLLINGS & FERNERLTDFirst DefendantAND THE FLETCHER CONSTRUCTIONCOMPANY LTDThird DefendantAND R P BELBINFifth DefendantAND CRANE ENFIELD METALS PTY LTDtrading as CRANE COPPER TUBESixth DefendantAND MICO NEW ZEALAND LTDSeventeenth DefendantHearing: 18 May 2020Appearances: I Thain, E Moran and A Sweeney for PlaintiffM Ring QC and D Neutze for First DefendantK Fulton and M N Rathod for Third, Sixth and SeventeenthDefendants[Fourth Defendant struck out][Seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth,fourteenth, fifteenth and sixteenth defendants discontinued]Judgment: 21 May 2020JUDGMENT OF GRICE J(Application for adjournment by defendants)[1] The third, sixth and seventeenth defendants (the Fletcher defendants)supported by first defendant (Beca) apply for an adjournment of the 10 week trial inthis matter scheduled to start on 14 September 2020.1[2] The application for adjournment had been foreshadowed in a memorandum bythe Fletcher defendants dated 17 April 2020. The suggestion of an adjournment wasopposed by the plaintiff and so the matter was set down for hearing. Following that anumber of other memoranda were filed by counsel including two substantial affidavitsin support of the application for adjournment. The hearing of this application was heldwith counsel appearing remotely by VMR in accordance with directions.2 The hearingproceeded smoothly despite some initial difficulty locating all relevant memorandaand the affidavits which had been sent by email to the Court late last week.[3] I have allowed the adjournment but only for a period of four weeks to movethe trial commencement date from 14 September 2020 to 12 October 2020. Thisallows for the 10 weeks estimated for trial before the Christmas vacation. Any furtheradjournment would mean a date could not be allocated until sometime in 2022.Issues[4] While the defendants raised numerous points there are two main mattersadvanced by the defendants in support of the adjournment. These are in addition tothe impact of the conditions brought about by the Covid-19 Alert conditions and inparticular the present Alert Level 2 restrictions on trans-Tasman travel. The twoseparate issues are:(a) The plaintiff has defaulted in meeting the timetable. In particular, theplaintiff's briefs were due on 27 March3 but were not in fact serveduntil 8 May 2020. Therefore, they were six weeks late.1 The fifth defendant, Mr Belbin, the project manager has not played an active part in theproceedings. Counsel for the Fletcher defendants and Beca divided the argument between them.2 Capital and Coast District Health Board v Beca Carter Hollings & Ferner Ltd HC WellingtonCIV-2016-485-256, 20 April 2020 (Minute).3 Capital and Coast District Health Board v Beca Carter Hollings & Ferner Ltd HC WellingtonCIV-2016-485-256, 16 April 2019 (Minute) ["Minute of Grice J, 16 April 2019"] sets out thedirections in terms of weeks to trial.(b) The defendant significantly changed its theory of causation in itssecond amended statement of claim filed in November 2019. Thischange requires some of the defendants' experts to visit or revisit theplaintiff's hospital site in person. The experts presently resident inAustralia are unable to do this at present.[5] Further, the defendants say the plaintiff has exacerbated the situation by latediscovery of documents, including a business case document which was only providedrecently. The defendants say this shows the plaintiff has put forward a theory as to thecause of the leaks in the pipes (which are the focus of this case) in the second amendedstatement of claim (November 2019) but this theory had not been a focus until then.[6] The Covid-19 Alert Level 4, 3 and now Alert Level 2 restrictions have affectedthe ability of, in particular, the defendants' Australian experts to visit New Zealand totake samples as well as their ability to prepare for trial. New Zealand based expertsunder the present Alert Level 2 conditions4 are able to visit the plaintiff's site but theAustralian based experts cannot travel from Australia to personally visit the site.5[7] Two difficulties emerge for the defendants in relation to their Australianexperts:(a) Their inability to visit the site to inspect and obtain samples of pipesand related materials which they say are necessary for them to completetheir analysis and so their evidence.(b) Doubt over whether they will be able to attend court in person in orderto give their evidence in September 2020. The defendants say theprovision of remote evidence by Australian experts would put them ata disadvantage.4 Letter from The Right Honourable Dame Helen Winkelmann, Chief Justice to practitionersregarding COVID-19 – Protocol: COVID-19 Alert Level 2 (13 May 2020) ["Letter from the RtHon Dame Helen Winkelmann to practitioners"]. Alert Level 2 conditions came into force on 14May 2020. Civil witness actions can be held.5 Ministry of Health "COVID-19 – Border controls" <www.health.govt.nz>. The restrictions havebeen in place since 26 March 2020.Principles relating to adjournments[8] The principles applying to an application for adjournment are well known. Theapplication is dealt with under r 10.2 of the High Court Rules 2016 which provides:610.2 Adjournment of trialThe court may, before or at the trial, if it is in the interests of justice, postponeor adjourn the trial for any time, to any place, and upon any terms it thinksjust.[9] The interests of justice are the overriding consideration. This includes justiceto both parties as well as other litigants and also involves consideration of the abilityof the Court to manage and hear matters efficiently and within a reasonable timeframe.7 Venning J in NZ Iron Sands noted:8[14] As French CJ said in Aon Risk Services Australia Ltd v AustralianNational University:9the time of the court is a publicly funded resource. Inefficiencies in theuse of that resource, arising from the vacation or adjournment of trials,are to be taken into account. So too is the need to maintain publicconfidence in the judicial system.[10] The impact on the Courts of the Covid-19 pandemic has led to a backlog oftrials and including criminal jury trials. These may recommence in August 2020 butcontinuing restrictions means there is likely to be little easing of the backlog until 2021and so will result in significant demands on court resources through 2021 and 2022.[11] The Courts have recommenced witness actions and put in place protocolsallowing in-person participation at trials. At the same time, in New Zealand aselsewhere, the Courts are able to facilitate remote participation for both witnesses andcounsel.10[12] At present it appears that New Zealand may move to Alert Level 1 within thenext few weeks. The conditions which will be imposed at that level are not clear.6 High Court Rules 2016, r 10.2.7 Cygnet Farms Limited v ANZ Bank New Zealand Ltd [2016] NZHC 1945 at [8].8 NZ Iron Sands Holdings Limited v Toward Industries Ltd [2019] NZHC 2516 [3 October 2019].9 Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 at [5].10 Letter from the Rt Hon Dame Helen Winkelmann to practitioners, above n 4Present restrictions may be eased but trans-Tasman travel restrictions are likely tocontinue to apply. Even if the trans-Tasman restrictions are lifted at some stage whichhas been suggested by the relevant governments, if the Covid-19 cases increase ineither jurisdiction restrictions may be re-imposed. On present indications theuncertainty around particularly trans-Tasman travel is likely to extend into 2021.[13] Other jurisdictions are also grappling with how best to ensure the Courts,which provide an essential service, continue to function and meet the public interestthat cases are disposed of without undue delay.[14] Mr Fulton, for the third, sixth and seventeenth defendants, referred to theEnglish High Court decision of Muncipio De Mariana v BHP Group PLC.11 He notedthat the case involved an adjournment of seven weeks granted in a trial scheduled totake seven days relating to the collapse of a dam in Brazil. The litigation involvednumerous parties, significant damages and parties, witnesses and experts based inBrazil. The hearing in question was seeking a stay of proceedings on jurisdictionalgrounds. The lock down conditions in both the United Kingdom and Brazil wereimposed just as the lawyers from the United Kingdom were about to travel to Brazil.[15] The difficulties of remote participation were particularly acute in Muncipio DeMariana because of the volume of documentation, the need for interpreters to beincluded in the meetings conducted remotely and particular difficulties in relation totheir expert witnesses in Brazil.12 These included the fact that one witness aged 76,and was unable to access his staff or library necessary for his research. He also faceddifficulties operating technology without the assistance of staff which he did not have.Another expert was supporting vulnerable persons at home and did not have access tooffice as well as having a slow and intermittent internet connection from home inBrazil. Other witnesses were handicapped by having to work from home in Brazilwithout access to good internet, offices or support.11 Muncipio De Mariana v BHP Group PLC [2020] EWHC 928 (TCC) ["Muncipio De Mariana vBHP Group"].12 At [32].[16] The Judge in Muncipio De Mariana accepted that the difficulties expressed bythe witnesses were real and were grave but at the same time noted he proceeded on thebasis that "experience is rapidly showing ways in which such problems can beaddressed and their effects reduced (but not removed)".13 He did not accept that alengthy adjournment was necessary and allowed only sufficient time to enable thedefendants further time to prepare their briefs in light of those particular gravedifficulties.[17] In addition, one of the defendants in Muncipio De Mariana was an Australiancompany whose lawyers were based in Australia. The Judge commented that therewas a prospect that travel between Australia and the United Kingdom (for the lawyersand witnesses) might be possible in the English autumn (October/November). He putlittle weight on the added difficulty for the Australian lawyers that because of the timedifferences they would need to work through the night and into the early hours of themorning.14[18] Of particular relevance are the Judge's comments that the progress of theCovid-19 pandemic and the measures to address could not be predicted with anydegree of certainty. He said:1546. Matters might have moved to such a stage that it will be possibleto have a traditional in person hearing in July alternatively the position couldbe such that it will not be possible to have such a hearing even in the Autumn.The most that can be said is that there is some scope for believing or hopingthat the prospects of having an in person hearing with travel between Englandand Australia being possible are greater if the hearing is in the Autumn than ifit is in July. However, matters cannot be put higher than that particularly as atleast some commentators suggest there are likely to be waves of infection.[19] The Judge then went on to set out a number of principles governing theapproach he took in view of the Covid-19 conditions. He started with the overridingobjective that cases are to "be dealt with justly; in ways which are proportionate to theamounts involved, the importance of the case and the complexity of the issues; andexpeditiously and fairly".16 He noted that insofar as compatible with the proper13 At [40].14 Muncipio De Mariana v BHP Group, above n 11, at [44].15 At [46].16 At [16].administration of justice the Court will take into account the impact of the Covid-19pandemic conditions in relation to applications for extension of time for compliancewith directions, adjournments and applications for relief. A similar approach has beenindicated in New Zealand.17[20] In summary the principles suggested in Municipio de Mariana were:(a) The loss of an already fixed trial date "is no little matter to be borne inmind".18 However, recognition must be given to the effects of theworldwide pandemic causing delay in the gathering of evidence.(b) The Courts should continue to strive to resolve disputes, which is theirpurpose, even when that involves doing so by way of remote hearings.19(c) Difficulties from the pandemic conditions resulting in the parties andtheir lawyers being in different locations should be addressed robustlyand the parties are expected to take proactive measures to overcomesuch difficulties.20(d) There is a clear and consistent message that as many hearings aspossible should continue and they should "do so remotely as long asthat can be done safely".21(e) There should be a robust exploration of the ways in which arrangementsfor a remote hearing could be put in place. In particular, whether aparticular hearing should be adjourned if the case could not be heardface-to-face or be a remote hearing. The following points assist in thatassessment:22i) Regard must be had to the importance of the continuedadministration of justice. Justice delayed is justice denied even17 Letter from the Rt Hon Dame Helen Winkelmann to practitioners, above n 4.18 Muncipio De Mariana v BHP Group, above n 11, at [18].19 At [20].20 At [21] citing Re Smith Technologies (unreported 26 March 2020).21 At [22] citing Re Blackfriars Ltd [2020] EWHC 845 (Ch) at [32].22 At [24].when the delay results from a response to the currentlyprevailing circumstances.ii) There is to be a recognition of the extent to which disputes canin fact be resolved fairly by way of remote hearings.iii) The courts must be prepared to hold remote hearings incircumstances where such a move would have beeninconceivable only a matter of weeks ago.iv) There is to be rigorous examination of the possibility of aremote hearing and of the ways in which such a hearingcould be achieved consistent with justice before the courtshould accept that a just determination cannot be achievedin such a hearing.v) Inevitably the question of whether there can be a fairresolution is possible by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and theissue of whether and if so to what extent live evidence andcross-examination will be necessary is likely to be importantin many cases. There will be cases where the court cannot besatisfied that a fair resolution can be achieved by way of aremote hearing.[21] The Judge went on to say that any application for the extension of time whichwould necessarily lead to an adjournment of the trial should be assessed against thefollowing principles:23(i) The objective if it is achievable must be to be keep to existingdeadlines and where that is not realistically possible to permitthe minimum extension of time which is realisticallypracticable. The prompt administration of justice andcompliance with court orders remain of great importance evenin circumstances of a pandemic.(ii) The court can expect legal professionals to make appropriateuse of modern technology. Just as the courts are accepting thathearings can properly be heard remotely in circumstanceswhere this would have been dismissed out of hand only a fewweeks ago so the court can expect legal professionals to usemethods of remote working and of remote contact withwitnesses and others.(iii) While recognising the real difficulties caused by thepandemic and by the restrictions imposed to meet it thecourt can expect legal professionals to seek to rise to thatchallenge. Lawyers can be expected to go further than theymight otherwise be expected to go in normal circumstancesand particularly is this so where there is a deadline to be met(and even more so when failing to meet the deadline will23 Muncipio De Mariana v BHP Group, above n 11, at [32].jeopardise a trial date). So the court can expect and requirefrom lawyers a degree of readiness to put up withinconveniences; to use imaginative and innovative methodsof working; and to acquire the new skills needed for theeffective use of remote technology. As I have already notedmetaphors may not be particularly helpful but the court canexpect those involved to roll up their sleeves or to go theextra mile to address the problems encountered in the currentcircumstances. It is not enough for those involved simply tothrow up their hands and to say that because there aredifficulties deadlines cannot be kept.(iv) The approach which is required of lawyers can also beexpected from those expert witnesses who are themselvesprofessionals. However, rather different considerations arelikely to apply where the persons who will need to takeparticular measures are private individuals falling outsidethose categories.(v) The court should be willing to accept evidence and othermaterial which is rather less polished and focused than wouldotherwise be required if that is necessary to achieve the timelyproduction of the material.(vi) However, the court must also take account of the realities ofthe position and while requiring lawyers and otherprofessionals to press forward care must be taken to avoidrequiring compliance with deadlines which are not achievableeven with proper effort.(vii) It is in the light of that preceding factor that the court must beconscious that it is likely to take longer and require morework to achieve a particular result (such as the production ofevidence) by remote working than would be possible by moretraditional methods. In the context of the present case theDefendants said that meetings conducted remotely took twiceas long and achieved less than those conducted face to face.The Claimants challenged the precise calculation but acceptedthat such meetings would be likely to take longer and that isreadily understandable particularly in a case such as thepresent involving large quantities of documents and requiringat least to some extent the use of interpreters.(viii) In the same way the court must have regard to theconsequences of the restrictions on movement and the stepsby way of working from home which have been taken toaddress the pandemic. In current circumstances the remotedealings are not between teams located in two or more sets ofwell-equipped offices with fast internet connexions and withteams of IT support staff at hand. Instead they are beingconducted from a number of different locations with varyingamounts of space; varying qualities of internet connexion; andwith such IT support as is available being provided remotely.In addition those working from home will be working fromhomes where in many cases they will be caring for sick familymembers or for children or in circumstances where they areproviding support to vulnerable relatives at another location.(ix) Those factors are to be considered against the general positionthat an extension of time which requires the loss of a trial datehas much more significance and will be granted much lessreadily than an extension of time which does not have thateffect. That remains the position in the current circumstancesand before acceding to an application for an extension oftime which would cause the loss of a trial date the court mustbe confident that there is no alternative which is compatiblewith dealing fairly with the case.[22] The principles articulated in Muncipio De Mariana are applicable inNew Zealand in the context of the assessment of the interests of justice required byr 10.2 of the High Court Rules 2016.Background[23] The plaintiff is a district health board. It owns and operates the WellingtonRegional Hospital. In about December 2005 it started building a six level new mainbuilding on the hospital site in Newtown. The project was a major one worth in excessof $140 million. There was substantial contractual documentation involved.[24] The project included the design and installation of new copper piping for hotand cold water services throughout the main building. Beca designed and reviewedthe hot and cold water system, including the preparation of specifications for thematerial to be used in the construction of the system and its installation. The practicalcompletion certificates were issued for the project in 2008. Beca also monitoredconstruction.[25] The head contract was between the plaintiff and Fletchers, the third defendant,it included provisions for the supply and installation of copper pipes for the hot andcold water system. That particular part of the contract was carried out by a sub-contractor. The pipes were manufactured by Mico, the seventeenth defendant whowas joined in November 2018 following a defended application.[26] The copper pipes for the hot and cold water system which run through the sixlevel main hospital building developed leaks. The cause of the leaks in the pipesremains the subject of differences between the experts. In 2018 there was remediationwork relating to the plumbing and the pipes which has complicated matters.[27] A schedule of the leaks is attached to the second amended statement of claimlists. It lists leaks found as early as February 2010. About 350 leaks have been logged.Some leaking pipes have been replaced, some patched, and others cannot be patchedor replaced. The leaks have lessened since the work was done on the system.[28] The design defects causing the leaking are described in the second amendedstatement of claim. In summary these are:24(a) Type two pitting of the pipes: this is said to relate to water temperature,the level of water flow and the copper pipes not being properly flushedat the pressure testing and/or installation stage; water being leftstagnant in the pipes and the design of the hot water system causingstagnation in some sections.(b) Erosion corrosion of the pipes: this is said to be caused by among otherthings the initiation of corrosion through microbial or chemical activityprecipitated by the failure to flush the pipes properly during pressuretesting and/or installation so leaving stagnant water in the pipes.(c) Maintainability defects: that defects in design have unnecessarilycaused the cost of maintaining and repairing the hot water pipes and thehot water system.[29] Counsel advise that the loss now claimed is in the region of $98 million.[30] The claims against Becca are for negligence in design, in constructionmonitoring and in breach of an indemnity. The claims against the Fletcher defendantsare in negligence and under the Consumer Guarantees Act 1993.24 As at 14 November 2019.[31] The claim was filed in April 2016. A summary judgment application to strikeout the claim by the Fletcher defendants25 was heard in 2017.26 The claim wasdismissed against the fourth defendant, Dr Smith but otherwise unsuccessful.[32] The plaintiff made an application to join Mico as seventeenth defendant in July2018 which was opposed. The joinder application was granted in November 2018.27[33] There have been a number of memoranda and minutes dealing with pretrialmatters. Tailored discovery was directed by Minute of 17 August 2018. The protocolfor inspection of the pipes was the subject of detailed directions by agreement on1 June 2018. The defendants' experts inspected the site in October 2018 and July2019. The pre-trial directions and timetable are set out in a minute dated 16 April2019 when the trial was set. Pleadings closed in December 2019.[34] The defendants have now also foreshadowed a further application for tailoreddiscovery in a memorandum filed for the purposes of the application for adjournment.The plaintiff has indicated it will respond by providing documents if necessary butsays the application is not necessary.[35] Each party has pointed to the other being responsible for late discovery socreating difficulties for the others. The cause of the need for the ongoing discoveryseems to be mainly due to the fact that the matters giving rise to these proceedings arenow over 10 years old; some recording and logging systems employed by all theparties have been difficult if not impossible to retrieve, a problem exacerbated by theuse of electronic records which are difficult to recover from obsolete systems; thatdocumentation and other material which might have been useful in the proceedingshas been lost or misplaced and many different people were involved in the constructionand held relevant material. These factors have been known to the parties since earlyin the litigation.25 Including the fourth defendant, Dr Smith (a construction manager for the third defendant at therelevant time) and excluding Mico which was added in 2018.26 Capital and Coast District Health Board v Beca Carter Hollings & Ferner Limited [2018] NZHC24.27 Capital and Coast District Health Board v Beca Carter Hollings & Ferner Limited [2018] NZHC2862.[36] In support of its application the Fletcher defendants filed an affidavit with asummary of correspondence between the parties over the last few months in supportof its claim that it was the plaintiff who produced material late and has beenuncooperative. However, the summary, according to the plaintiff, is notcomprehensive. The affidavit was only filed shortly before this hearing and withattachments is over 200 pages long. However, it is not a full record of the relevantcorrespondence and discussions between the parties. I do not find it of greatassistance.The issues[37] The defendants have sought an adjournment of the trial to a date on or after29 March 2021. One difficulty with the adjournment of a 10 week trial scheduled tocommence in September 2020 is that the scheduled time cannot be filled by a longcause on this short notice. From a practical point of view the time will be lost.[38] Counsel have also noted, and I agree, that this is not a case which can bebrought on as a standby matter on short notice. It involves the coordination of anumber of witnesses including experts and counsel who all have calls on their timeand resources.[39] I also note that some counsel have obligations beyond the first quarter of nextyear. Even more problematically the Registrar is unable to allocate a date for a civiltrial of this length until 2022.[40] However, I note that the lawyers representing all parties are led by senior andexperienced counsel who have adopted a largely constructive approach in dealing withthe difficulties brought on by the Covid-19 restrictions. The parties in this case arewell resourced, have access to good technology, internet support and research facilitiesas well as work places. This is in contrast with the working conditions and resourcesavailable to counsel and parties involved in many other cases.[41] Nevertheless, working remotely is more difficult in many respects and willlikely add to the time involved for briefing witnesses despite allowing for someefficiencies and time savings in other respects including travel time. In additioncounsel and the experts have only within the last three weeks had full access to theirwork places. Nevertheless it appears all have been equipped to work remotely.[42] It is with those constraints in mind that I must now consider the application foran adjournment in the specific circumstances of this case in order to assess the interestsof justice.The plaintiff's defaults1 Plaintiff's briefs of evidence[43] The plaintiff's briefs were filed some six weeks late.28 They were due on27 March 2020, at the beginning of the Covid-19 lock down period and on 8 May2020. The plaintiffs had earlier assured the defendants that the briefs would be filedin time.[44] Mr Thain for the plaintiff said the delay in the provisions of briefs wasregrettable but attributed part of the delay to the "drop" of a substantial quantity ofdocuments (in excess of 3,000) by the defendants just before the briefs were due.Nevertheless, according to the defendants the receipt of those documents did not leadto many amendments in the briefs of evidence. The defendants say only one of 20briefs was required to be amended to accommodate the additional discovery.[45] In any event even if amendments had been required it would have beenreasonable for the plaintiff to provide the draft briefs reserving its rights to amend thebriefs if such amendments were required after a review of the new discovery. Theplaintiff is the party who seeks to retain the trial dates.[46] The defendants also point to the fact that Mr Jenkins (a consultant retained bythe plaintiff to investigate the leaks some years ago) has now come forward with anumber of samples which have only recently been discovered in a workshop. Thesehave now been made available to the defendants' experts.28 Minute of Grice J, 16 April 2019, above n 3.2 Theories of the cause of the leaks[47] The defendants say that apart from the late briefs of evidence the plaintiff hascreated other last minute obstacles to its experts being able to complete their briefs.In particular they say the plaintiff recently shifted its focus on the theory of the causeof the leaks in the pipes. The defendants say that water not properly flushed out of thesystem at the time of construction so stagnated in the pipes causing microbial activityor reactions which were a causative factor for pipe erosion corrosion leading to theleaks in the pipes.[48] In support of the submission that the stagnation theory was a change of courseby the plaintiff, Mr Williams, a senior principal and senior technical director of BecaGroup Ltd, provided an affidavit. He said he had reviewed the plaintiff's briefs ofevidence. He said that in the original statement of claim the plaintiff, in general terms,alleged defects in design and construction of the hot and cold water system whichcreated impingement attacks on the copper pipes. Mr Williams said the relatedparticulars commentary was general without specific references. Mr Williams goeson to say that the amended statement of claim in (filed and served in draft in June2018) attributed the cause of leaks to Type Two pitting and erosion corrosion of thepipes due to the hot water system and the temperature as well as the fact that theoperating temperature of the hot water system could not be readily controlled. Thesewere said to be Beca design failures. Mr Williams said there was a lack of particularsas to where the system temperatures and velocities were too high, what thetemperatures of velocities were and the basis for lack of temperature control were notprovided.[49] Mr Williams says it was only in the second amended statement of claim filedon 14 November 2019 that the defects in design and construction of the hot watersystem leading to erosion corrosion included the theory that the pipes were notproperly flushed during pressure testing or installation leaving the water to stagnateand so initiate corrosion.[50] In addition counsel pointed to a business case for the Ministry of Healthprepared by the plaintiff on 14 November 2019 saying that the root cause of leaks wasthe stagnation of water. Mr Williams says the plaintiff's briefs of evidence receivedon 8 May 2020 provided a selection of possible causes but even then he says somedetail is not clear. He refers to the evidence of Mr Woolhouse, the plaintiff's hydraulicconsultant who refers to "uncontrolled and damaging water dynamics" but says it isnot clear from the brief whether Mr Woolhouse asserts the temperature of the water inthe hot water system was too high or too low or whether the velocity was too high ortoo low.[51] The defendants say the recent change in the focus of the theory behind the leaksis largely the reason that their experts need to take further samples and visit or revisitthe hospital in person to observe or select samples of the pipes in order to analyse thembased on this new theory.[52] The defendants' experts have had the opportunity to carry out in-person sitevisits and did so well before the Covid-19 restrictions came into force. I understandthat most, if not all, of the experts have visited the site. I put little weight on the needfor an in-person site inspection in the near future in those circumstances as there areoptions for other ways of obtaining the necessary information which need to beproperly explored.[53] In response Mr Thain for the plaintiff says that the issue of stagnation in thepipes has been a live theory for some time. In particular he points to the fact that thetheory was squarely raised by the plaintiff's expert in relation to erosion corrosion incopper pipes.29 Dr O'Halloran in his affidavit dated 10 February 2017 (in oppositionto the strike-out application) set out the theory squarely. He pointed to the fact thatthe plaintiff had been unable to locate documents to show the water was flushed fromthe hot water plumbing system in the hospital after the testing and raised the questionof stagnation of water in the pipes. He then went on to outline the potential harmfuleffects caused by stagnant water and failure to thoroughly flush new pipe work. In anaffidavit at the same time of Mr Angus the plaintiff's project engineer, made particularreference to searches he had undertaken looking for documents which would show29 Dr O'Halloran is a research chemist with qualifications and experience in analytical electrochemistry relating to water as well as analytical chemistry of waters and corrosion of coppertubing.whether or not there had been water left in the pipes following flushing which mighthave caused stagnation. He was unable to find a number of documents he was lookingfor which might have assisted, however he did find some checklists which led him tothe conclusion there may well have been water left in the pipes following flushingwhich might have led to the relevant pipe damage.[54] Mr Thain also notes that the original statement of claim was wide enough toinclude the stagnant water theory but acknowledges it did not specifically refer to it.However, he says the first amended statement of claim referred to the issue of stagnantwater. He said this was filed and circulated to the parties about 15 June 2018 wellbefore inspection occurred by the defendants' experts on 2 October 2018.30 Theplaintiff said the erosion corrosion theory based on stagnation was a live theory fromearly 2017 and specifically included in the pleadings in 2018 before the defendants'expert visits. The defendants say while the theory was mentioned in the pleadings andit might have been referred to in the evidence it was not the focus of the case and thatit was only clearly stated in the second amended statement of claim filed in November2019.[55] In my view the theory based on stagnation was squarely in focus at least from2017 onwards. Since then the defendants' experts have carried out inspections. Theywere alive to the theory based on stagnant water. Dr Smith the Fletcher expert wasfamiliar with the theory. He filed two affidavits at the time of the application to strikeout and specifically refers to reviewing Dr O'Halloran's and Mr Angus' affidavits. Herefers to the stagnant water theory. Mr Williams also filed an affidavit at the time forBeca as did Mr Rowlands. I do not consider the fact that the second amendedstatement of claim honed the theory detracts from the fact that all the experts wouldhave been aware of it and would have needed to undertake their investigations takingit into account.30 It was originally filed as a draft because it made the claim against Mico and the joinder wasopposed and so the final version was not filed until 12 November 2018. When it was filed itretained the stagnant water allegation.[56] The strength of the plaintiff's evidence on the theories of causation arecriticised by the defendants' experts. However, those are matters for furtherdiscussions between the experts and for trial.3 The effects of the Covid-19 Alert Level restrictions[57] In the present Alert Level 2 Alert conditions no travel is permitted betweenNew Zealand and Australia. The government has indicated that there are discussionsin train between Australia and New Zealand which may lead to a relaxation of thetrans-Tasman travel prohibitions. There is no clear indication of when suchrestrictions might be lifted. In any event it is likely the conditions may change if therewas any increase in the Covid-19 case numbers in either country in the future.Attempting to predict the likely circumstances which will prevail in September isimpossible.The experts[58] Counsel for Beca says that three of its primary experts are based in Australia.Two of those, Mr Rowlands (metallurgist) and Mr Alexander (hydraulic systemexpert), seek to inspect the hospital in person. Mr Rowlands has already inspected thesite.[59] The Fletcher defendants' experts who face particular difficulties areMr Roberts, a quantity surveyor based in Australia and Dr Smith who is a metallurgistbased in Auckland.[60] Mr Roberts, in a letter provided to the Court, says that the relevant plaintiff'sexpert briefs are deficient but if they had been supplied six weeks earlier he may havebeen able to make progress. He also says he is impeded by the inability to make apersonal site inspection. Mr Roberts merely says that a virtual site inspection is lessthan optimal. That may be the case however in the circumstances that is available tohim. In addition, with the assistance of virtual technology he is able to discuss matterswith the other experts and in particular the plaintiff's experts. While there are addeddifficulties there is no reason why Mr Roberts cannot prepare his brief of evidenceparticularly as he has the benefit of a further four weeks preparation time.[61] Dr Smith of Optimech International Ltd in Auckland expresses concerns abouthis ability to get the samples in his possession tested at the University of Aucklandlaboratory. He says that he has had the samples for some weeks and has started testingthem at the laboratory. However, that the move to Alert Level 3 conditions has resultedor may result in delays at the laboratory. Dr Smith has the samples and has sortedthem. There is nothing to suggest that other laboratories are not available or that histesting cannot be prioritised particularly if given extra time to prepare his evidence.He is also awaiting samples to be sent from those found in the Jenkins workshop.31[62] Mr Gartner, an Australian based expert who has been retained to peer reviewDr Rowland's metallurgy expert report, is over 70 years of age and he does not wishto travel to New Zealand even if travel were possible. There appears no reason whyhe cannot undertake the peer review remotely.[63] Mr Alexander, a hydraulics engineer based in Australia, has provided a lettersetting out the difficulties he faces. He says he was retained by Beca and met withthem last year in Australia and had planned to undertake an intensive investigation ofthe issues related to the hospital in March this year. He expresses a number of concernsrelated to the quality of the plaintiff's evidence and in his view the defendants' expertshave omitted investigation which he considers is appropriate, relating to componentsof the hot water network. He lists the components which include hot water tanks andother items in the system. Mr Alexander makes the point that it is always good to have"ample time for investigation and testing so nothing gets overlooked", that he is anexpert whose schedule is booked up for at least six to 12 months ahead and he is facinga serious bottleneck of cases due to the delays caused by the Covid-19 travelrestrictions. Mr Alexander points to the dilemma for both the Court and the partieswhen he says:Simply extending the timetable for a set period of time will not in itself fix theproblem, because it is not known if or when Australian citizens will bepermitted to enter New Zealand.31 Mr Jenkins was an expert in, among other things, forensic investigations into copper pipe systemsengaged by the plaintiff in late 2015 to look at the pipe failures. He took a number of pipe samplesheld by him at his workshop. These have been recently located by the plaintiff and made availableto the defendants.[64] Mr Alexander makes no suggestion for alternatives options to obtaininformation he needs and insists it requires a personal visit by him. He does not evenconsider the use of local experts or the provision of other material. There are otheralternatives which he may say are not optimal but he has not even considered. Whetherthat involves other local experts or assistance of those who have already visited thesite or other options, they need consideration.[65] Mr Woolhouse, the plaintiff's hydraulics consultant, appears to be based inAustralia and it may even be possible for the hydraulics experts to collaborate inperson in Australia subject to applicable interstate restrictions.[66] The defendants expressed concern that the conditions will affect the ability ofthe experts to meet, discuss and provide joint reports. They say that without the timethat had been built in for their experts, the trial might last longer than the presentestimate as the experts may have to give their evidence in the traditional manner ratherthan a more collaborative approach.[67] Given the demand on the Court to deal with the back log of jury trials, and theuncertainty surrounding the conditions which might exist five months from now, whenthe trial is scheduled to commence, I consider it is in the interests of justice to grant ashort adjournment and start the trial on 12 October 2020.Analysis[68] I am of the view that all parties have contributed to the ongoing discoverydifficulties largely through no fault of their own but due to the lapse of time since theevents giving rise to the proceedings.[69] I place little weight on the defendants' argument that there has been the suddenintroduction of a new theory of the case of the leaks which has made it necessary forthe experts to personally visit the premises. It was apparent in 2017 that waterstagnation was one of the theories of the cause of the leaks. The defendants' expertsor most of them have visited the site, taken samples and undertaken observations. Inany event alternative means are available to obtain further samples and inspect thesystems including using New Zealand experts direct site examinations and the takingof samples and video viewing.[70] The lateness of the provision of the plaintiff's briefs of evidence has added tothe delays. As I noted while there may have been ongoing discovery of large amountsof documents by the defendant, the plaintiff was aware that the trial dates would beunder pressure. It could have provided the briefs in draft subject to the caveat thatthey might require amending.[71] I accept that the six weeks delay included Easter but that does not excuse theplaintiff's delay. Nor does the suggestion put forward by the plaintiff that the fact thatthe Alert Level 4 conditions were in place most of that time so the defendants couldnot do any work on the briefs excuse the plaintiff's dilatoriness. The defendantsindicated they could have used that time in preparing replies.[72] The plaintiff has suggested the trial might take six to eight weeks rather thanthe 10 weeks. The defendants counter and say the trial might be lengthened due to theinability of the experts to collaborate. However, all parties agreed on the 10 weekestimate at the time the matter was set down for trial which was well over 12 monthsago. At that stage the parties would have had a good idea of what was involved. I donot consider it is appropriate to attempt to change that 10 week estimate now.[73] There is no suggestion here that either counsel or the witnesses, including theexperts, face obstacles in accessing good internet connections, technical support andassistance nor are they restricted from movement to laboratories and other workplacesin their own jurisdictions. Virtual meeting rooms and Zoom conferences provide thefacilities needed to share documents, even large size plans for the purposes of expertdiscussions. It is expected that that is how the preparation of evidence andcollaboration between experts will be undertaken in the foreseeable future whileperson-to-person meetings are not feasible.[74] The defendants' experts' concerns can be dealt with or at least considered. Itappears many of their concerns are about the lack of clarity as to what caused the leaks.There are a number of theories and the experts have had at least three years to considerthem.[75] The same applies to giving evidence remotely if that is what the experts arerequired to do. Mr Ring QC, for Beca, indicated there might be credibility issueswhich require examination in person. He also pointed to the fact that the plaintiff'sexperts would likely be giving evidence in person and so therefore would have theupper hand. However, the relevant evidence is by professional experts. They areexperienced and responsible and bound by obligations to the Court. There is no reasonwhy their evidence cannot be given remotely as effectively as would be the case ifthey gave the evidence in person.[76] It is not clear what conditions will prevail in October in New Zealand andAustralia and futile to make guesses at this stage. The parties have options availableto deal with the inability for their experts to travel to New Zealand. It is open to theparties to agree on joint reports and collaborate on the presentation of evidence. Theparties will have time to consider their approach on that.[77] I do not overlook the fact that the experts will also be under pressure to preparetheir evidence as well as attend to other cases. However, that is more likely to beexacerbated if this matter is adjourned beyond the end of this year. That seems to bethe situation acknowledged by Mr Alexander. There will be a number of parties inlong cause trials seeking adjournments, which will lead to problems in 2021 withexpert and counsel availability. In my view it is better to retain the present dates orthereabouts and work toward them while the experts are focussed rather than allowthe dates to slip into some distant time in the future.[78] In summary:(a) There is an existing trial date which has been in place for some time. Atrial estimate of 10 weeks will be difficult if not impossible toaccommodate until 2022. That is not prompt administration of justice.It is also unlikely the Court can use the 10 weeks that will be vacatedby moving this trial and so resources will be wasted.(b) Access to technology and to work resources present no problems in thiscase. All parties are well resourced, with senior counsel acting for themand experienced experts have been retained. In addition, not only canthey take advantage of remote meetings to collaborate using technologyavailable to them but they are locally able to meet face-to-face ifnecessary.(c) The experts based in Australia have access to good IT, reliable internetconnections, work spaces including laboratories and have norestrictions on moving internally in Australia. They are professionalsand should be able to adapt to working under the present conditions.(d) Recognition needs to be given to the fact that counsel and experts havebeen hampered in preparation and that is likely is to cause delays.Nevertheless, as I have indicated, good communications, are nowavailable and with the proposed adjournment there is over five monthsto an October trial start.(e) An adjournment of any more than the month allowed in this case willresult in substantial delay in bringing the matter to trial.[79] As I have noted the trial start can be moved out to 12 October 2020 for the 10week trial. This allows a further month to accommodate the defendants' preparation.I am aware this may create difficulties for Beca's counsel who have another long causetrial occurring in the Wellington High Court. To that end their involvement will needto be accommodated but should not prevent the defendant parties having the benefitof the extra month in the circumstances.[80] Mr Fulton noted that he had taken steps to ensure that he had sufficientresources available. He has involved another barrister, however he also made the pointthere comes a time where the addition of resources of people becomes counter-productive. There are two senior counsel acting for Beca. The addition of resourcesis an option for them to consider.[81] The defendants say the plaintiff suffered no prejudice by delays because it hasthe remediation works scheduled over six years and has obtained funding from theCrown to undertake the remediation. The defendants say this case is just about moneyand it is not a situation where the plaintiffs are prevented from remediation. That maybe the case but there is significant public interest in having this matter dealt with asclosely as possible to the scheduled dates. The court system is under particularpressure exacerbated by lost hearing time caused by the Covid-19 Alert Levelrestrictions. It is in the interests not only the plaintiff but also the defendants to ensurematters such as this do proceed as closely as possible to schedule when alternative trialdates which can be allocated are 18 months to two years away. The proceedings arenow four years old, the events giving rise to them are 10 years old and the parties havebeen focussing on a start date in September 2020 for over a year.[82] The claim is large which I take into account but further delays will increasecosts to the disadvantage of all parties. The public interest in bringing this matter totrial as well as fairness to the plaintiff is in having it resolved. The issues raised bythe defendants' experts can be accommodated with cooperation between counsel andthe parties. Of course circumstances may change closer to trial however at present Iam of the view that an adjournment of four weeks to 12 October 2020 meets theinterests of justice.[83] While the difficulties caused by the present Alert Level 3 and 4 as well as therestrictions on travel at the present Alert Level 2 will create some obstacles, there areoptions for getting around them which are available.[84] The plaintiff has suggested an alternative timetable in its memorandum,starting with the plaintiff's briefs of evidence which were provided on 8 May 2020.The defendants will now have the benefit of an extra month which will allow moretime for the conferring of the experts than would be the case with the present start date.The full timetable needs to be revised but with the following indications of a timetablethat would work toward a trial date commencing 12 October 2020 as follows:(a) the first, third and seventeenth defendants' briefs of evidence to beprovided by 20 July 2020;(b) the sixth defendants' briefs of evidence to be provided by 18 August2020;(c) the plaintiff's reply briefs of evidence (if any) to be provided by18 (?) August 2020;(d) counsel for the plaintiff and defendants to confer regarding theconferencing of expert witnesses within 14 working days of service ofthe plaintiff's reply briefs of evidence;(e) a pre-trial conference to be held in mid-August 2020; and(f) the common bundle to be filed on 31 August 2020.[85] Counsel will need to confer further on the timetable as it relates to the steps setout in the Minute of 16 April.32 If this is able to be agreed a joint memorandum is tobe filed within seven days of the date of this judgment otherwise counsel should filememoranda before a teleconference to be set by the Registrar to review the position inthe week of 8 June 2020 or shortly thereafter.[86] A further pre-trial conference to review the timetable should also be set in mid-August 2020.[87] Therefore, the application is successful insofar as a month adjournment of thetrial start date is allowed. It will now start on 12 October 2020. If counsel are unableto agree on costs in relation to this application for adjournment, memoranda should befiled in the usual manner with the plaintiff's memorandum to be filed on or before 10days of the date of this judgment, the defendants' responses to be filed on or before afurther 10 days and any reply on or before a further three days._________________Grice JSolicitors:DLA Piper, WellingtonBrookfields Lawyers, Auckland32 Minute of Grice J, 16 April 2019, above n 3.