SENSIBLE COVID PRECAUTIONS TAKEN WHEN IMPLEMENTING A SEARCH ORDER: APPLICANT TAKES A VERY NUANCED APPROACH
The judgment of Mr Justice Fordham in Calor Gas Ltd v Chorley Bottle Gas Ltd & Anor  EWHC 2426 (QB) has some interesting observations about the way in which COVID affects both the way a hearing is held and the way in which a search made under a court order is implemented.
“It is, in my judgment, a virtue that the applicant sought in the design of the proposed order realistically to recognise proportionality considerations arising out of the current Covid-19 circumstances. Also to the claimant’s and its lawyers credit is the design within the provisions of the draft order, and accordingly in the order which I have made, search and other steps to ensure appropriate action so far as safety and distancing and Covid-19 is concerned.”
The claimant made an application for a search order, alleging that the defendants had been wrongfully using its gas cylinders.
THE REMOTE HEARING OF THE APPLICATION
The application, heard on 22 July 2020, was heard remotely.
The hearing was in private. I was satisfied that publicity would defeat the object of the hearing. In due course, once the return date has passed, this judgment will be able to be published in the usual way. I was and remain satisfied that the open justice principle has been secured to the extent that it can be and that the nature and extent of derogation from it was fully justified as necessary and proportionate.
Mode of hearing
The mode of hearing was a remote hearing by BT conference call, recorded so that the recording would be secured and available for subsequent access should it be needed. A shorthand writer participated in the hearing including its resumption. The decision to conduct the hearing by remote hearing was mine. The claimant’s legal representatives had made clear, to their credit, that they were willing to come to court 37 at the Royal Courts of Justice to appear in open court physically before me. Grateful though I was, and am, I decided that it was necessary and appropriate that the hearing should be a remote hearing. Although we can be said to be in the post-lockdown phase (as things currently stand) in relation to Covid-19, the arrangements remain extant in the courts for remote hearings to be directed where justified as necessary and appropriate. I was anxious that arrangements would be needed to be taken at very short notice to set up a conventional hearing, with modified social distancing arrangements, and including not only the claimant’s representatives but the court staff. As it seemed to me, there was no disadvantage, and several advantages, from proceeding in this case by means of remote hearing. At the start of the hearing I was able to discuss with Mr Peto QC the claimant’s leading counsel whether the mode of hearing was in any way detrimental to his client. He was satisfied, and I was satisfied, that it was not. I also had in mind that this was likely to be, and I reviewed the position when the hearing commenced and I needed to direct on that matter, a private hearing. In open justice terms, there was therefore nothing to be gained from the hearing taking place physically within the court building. The hearing as I explained has been tape-recorded, and it was my intention to give a reasoned ruling which in due course would be published. I was and remain satisfied that it was necessary and appropriate to take steps to minimise risk, and secure practical effectiveness and speed. In all those circumstances, and for those reasons, I am satisfied that the mode of hearing was one which was not only appropriate but necessary.
CHANGES TO THE NATURE OF THE ORDER SOUGHT AND MADE AS A RESULT OF COVID
There were interesting changes made to the search order sought. These were a direct result of Covid.
I am told, and I accept, that one of the key features which has led to that narrower formulation relates to the current Covid-19 pandemic and social distancing requirements. Mr Peto QC submits that the claimant ought not to be penalised by reference to the fact that it has not sought further and yet more intrusive orders, for example in relation to searching and seizing of documents but has relied instead on more conventional court orders that documents be preserved and that an affidavit be sworn describing relevant transactions. I accept that submission. It is, in my judgment, a virtue that the applicant sought in the design of the proposed order realistically to recognise proportionality considerations arising out of the current Covid-19 circumstances. Also to the claimant’s and its lawyers credit is the design within the provisions of the draft order, and accordingly in the order which I have made, search and other steps to ensure appropriate action so far as safety and distancing and Covid-19 is concerned. Given that rather unusual feature of this case I will set out here what are called ‘the Covid undertakings’ put before the court in the present case and embodied in the order which I have made. They read as follows: