INNOVATIVE APPROACH WHEN PROPOSED APPELLANT UNABLE TO ATTEND COURT

In  [2020] EWHC 735 (QB) Mrs Justice Tipples took an innovative approach to the problems caused by a claimant’s inability to attend court because of the coronavirus problems.  The submissions were made by email.

 

THE CASE

The judge was considering an application for permission to appeal. The appellant could not attend court because of coronavirus, nor could she attend remotely.

THE JUDGMENT ON REMOTE SUBMISSIONS

2. The application was listed for hearing at 10.30am on Tuesday 24 March 2020, with a time estimate of 2 hours. The hearing was fixed earlier this year and, on 11 March 2020, the Appellant applied for the hearing to be adjourned on the basis of “incapacity due to an infection in the right middle finger”. That application was refused by Foster J on 17 March 2020. One of the points made by Foster J in her ruling was that “the (undated) photographs show, in one picture, a right hand/arm wearing a brace, in another a left hand/arm wearing one”.
    1. In the light of the Covid-19 pandemic, I endeavoured to give directions for the hearing on 24 March 2020 to take place remotely in accordance with the Remote Hearings Protocol published on 20 March 2020. Unfortunately the Appellant, who is acting in person, was unable to participate in a Skype call as she told me her laptop had been stolen, and she said she was unable to afford the cost of a hearing by telephone on her mobile phone. However, the Appellant has no problem communicating, or expressing herself, by email. Indeed, she accepted that “the decision to proceed by way of written submissions is better than by telephone, as it does not introduce additional charges to [her] mobile phone bill”.
    2. In these circumstances, I directed the Appellant to write down and email to my clerk everything she wished to say in support of her application by 6pm on Tuesday 24 March 2020. I provided this timescale as the Appellant has had ample time to prepare for this hearing, and there was no reason why she could not write down on 24 March 2020 what she had prepared to say at the hearing itself, if the hearing had been possible by physical attendance in a court room.
    3. I directed the Respondent, the London Borough of Camden, to respond to any such written submissions by 6pm on Wednesday 25 March 2020, and I gave the Appellant the opportunity to reply by 6pm on Thursday 26 March 2020. I then said that I would provide a written ruling.
    4. The Appellant saw this as a further opportunity to ask for an adjournment, which was contained in her email of 24 March 2020 (timed at 12.42). If that request was refused, she then asked for an extension of time to file her written submissions until 31 March 2020. She said this:
“In the event that the court is minded not to adjourn this hearing to a future date, I will still reluctantly say as follows:
0. To me the decision to proceed by way of written submissions is better than by telephone, as it does not introduce additional charges to my mobile phone bill; however the submission deadline of 4 pm (about 3 hours from now!)  does not work for me at all for the following reasons:
1. I am still wearing a brace on my right hand due to my middle finger being affected by paranonychia, and in addition I am using my mobile phone to write you so my output will be slow, difficult and probably full of gramatocal errors.
2. As previously indicated I was robbed on 12 March 2020, of my computer bag containing my laptop, etc. A copy of the police letter with the crime reference number has been forwarded to the court. All data saved in the hard drive of my stolen laptop is now lost to me as the rogue(s) who stole my computer bag, wiped out all the information stored on my one drive account. Therefore I have to try to recover all documents attached to my e-mails, including the said document sent by the Respondent on 17/01/20, and save on my phone storage in order to read them up, which will take me many hours. As already stated, I was so occupied with my husband’s case that I could not read my own case papers. Evidently due to his mental/other health conditions, he cannot assist me on my own case, or can he? No is the answer! In addition I may have to spend many more hours researching on cases including the ones quoted by the Respondent.
3. Following from above, I may draft my further submissions but cannot send them off until I have put them before a qualified solicitor to review and check for any legal errors. Evidently I am the appellant and so must use my best endeavours and every service available to me to ensure my new submissions are legal, relevant and to the point. Due to the current Corona virus pandemic, majority of the CABs are now acting via email, and telephone; and to get a response may take anything from 1-7 days, or more.
4. Accordingly for reasons stated above a more realistic submission deadline for me would be in a week’s time, i.e. 31st March, subject to court approval. Thanks for anticipated favourable consideration.”
    1. This request was opposed by the Respondent.
    2. I refused the Appellant’s request for an adjournment as set out in my email sent on the afternoon of 24 March 2020:
“Thank you for Ms Gil’s message dated 12:43, which the Court has considered.  The Court refuses Ms Gil’s further request for an adjournment.  The hearing has been fixed for a very long time and a request for an adjournment was refused by Foster J on 17 March 2020.  The Court will take account of all the points set out in her email in determining her application and, if there is anything further Ms Gil wishes to add to her submissions, then she must send any further points email to the Judge’s clerk … by 6pm today (in accordance with the Order made this morning).  Thank you very much.”
    1. The Appellant did not send in any further representations. Rather, the only document she emailed through was an Order made by District Judge Hayes on 23 March 2020 in the Clerkenwell and Shoreditch County Court in a case where her husband is the defendant. That case has nothing whatsoever to do with this application and is irrelevant in present circumstances.
    2. On 25 March 2020 the Respondent sent the court the following email:
“In the light of the Appellant not making any further representations relevant to her grounds of appeal, the Respondent relies upon its position in the skeleton argument dated 17 January 2018 (and Respondent’s notice, if necessary). For the avoidance of doubt, if permission is refused or, if granted but the appeal fails, the Respondent does not invite the court to deal with the matters in its Respondent’s notice”.
  1. The Respondent is represented by Ms Sarah Salmon of Counsel.
  2. The Appellant has not provided any response to the Respondent’s email.