CORONAVIRUS AND CIVIL PROCEDURE: THE PRACTICE DIRECTION ENDS TOMORROW: REVIEW OF THE CASES

Practice Direction 51ZA which allows parties to extend time limits for up to 56 days comes to an end on the 30th October 2020.   Unless there is a further rule change then parties can only agree extensions of 28 days.  This is an appropriate time to review the case law relating to civil procedure and coronavirus.

 

COURT ORDERS

It is worthwhile remembering that there is nothing to prevent the court making orders which allow the parties to agree extensions of time longer than 28 days. This happened in the very early days of lockdown in the O’Driscoll -v- F.I.V.E Bianchi S.P.A.,  reported here. 

CORONAVIRUS HAS NEVER BEEN AN AUTOMATIC “GET OUT OF JAIL” CARD

This was discussed by Master Kay in Sheeran & Ors v Chokri & Ors [2020] EWHC 2806 (Ch) where coronavirus was put forward as a reason for a claimant not responding to Part 18 requests.

70. The Request was made on 1 April 2020. There was no formal acknowledgment of the Request let alone any objection to it or even any request for more time to respond. Mr Mill tells me that both he and his junior Ms Bowhill were unwell with Covid-19 over the Easter period. He tells me that both Mr Forbes and Mr Goodbody of his instructing solicitors were unwell.
  1. He prayed in aid the general disruption caused by Covid-19 and that this limited the opportunities for the legal team to discuss the case.
  2. Covid-19 and lockdown are not a catch-all explanation for any delay or disruption to a procedural timetable or any failure to comply with an order. However, the court has to be realistic about the general disruption Covid-19 and lockdown caused at the beginning of this period. At the margins it might be appropriate for the court to be slightly more flexible when considering the exercise of its discretion where Covid-19 issues can genuinely be said to have had an impact on the conduct of a case. The court must necessarily accept that certainly in relation to the early part of the lockdown there is likely to be an absence of evidence, particularly medical evidence, and the court must do the best it can in assessing the position on the information available to it.
  3. In this case it seems to me that at a stretch Covid-19 might be an explanation for not providing an immediate objection to the Request but it does not assist at all in explaining why there was no application to set aside or vary the 27 April Order. Nor does it explain why, once it was clear that the Defendants were pursuing a further unless order by their application notice dated 8 May 2020, no application, however, late was made to extend time to apply to set aside or vary the 27 April Order.
  4. The Claimants did respond to the 1 April email serving the Request on 2 April 2020 although on another issue. As I noted above there is no suggestion that the Claimants did not receive the Request and they are represented by specialist solicitors and leading and junior counsel. It would require the clearest evidence to persuade me that there was no one available to respond to the Request, for a period of over a month, even if only to seek an extension of time, either before or after the 27 April Order.
  5. As a consequence of the Claimants’ silence the Defendants were in a position to obtain the 27 April Order on paper in accordance with PD18.4 and 5. As set out above no application to set aside or vary the 27 April Order was made and the response on 6 May, so far as it relates to paragraphs 1-18 was “not entitled”.
  6. The Claimants rely on ill health and Covid-19 as part of the reason why they did not apply to set aside the 27 April Order earlier. It may be that the ill health and Covid-19 explanation has slightly more merit in relation to the fact that the Claimants did not object to the Request in advance of the 23 April application but that does not assist them in relation to the question of whether there was a good reason for the non-compliance with the 27 April Order.
  7. Whilst serious and debilitating illness could amount to a good reason for non-compliance with an order, I am not persuaded in this case that there is such a good reason. The non-compliance is with the provisions in the 27 April Order. The 27 April Order was served on about 28 April and the 7-day period to apply would have expired on about 5 May 2020. The Claimants were able to serve their “not entitled” response on 6 May 2020.
  8. Mr Mill had also sought to suggest that the provision in the order permitting the Claimants to apply to vary or set-aside related to only a further extension of time. However, for the reasons set out earlier in this judgment I do not accept that such an explanation can reasonably be said to be a good reason nor indeed is it to my mind a correct interpretation of the clear meaning of the 27 April Order.
  9. I remind myself that at this stage the court should be considering the reason for the non-compliance or breach for which relief is being sought and not any wider consideration. The explanation for the failure to apply to set aside or vary the order simply does not get anywhere near to persuading me that there is a good reason for the non-compliance and breach in this case…
  1. It is suggested that Covid-19 and lockdown played a part in the Claimants’ approach. I do acknowledge that there was a national lockdown on 24 March 2020 and that people had to adapt to new ways of working. As set out above I accept that the lockdown may at the margins provide some explanation for the failure to grapple with the Request when it was served on 1 April. However, this hearing took place in July and still no application had been made.

Later, in relation to the claimant’s failure to apply to set aside the order that Part 18 questions be responded to.

  1. I do not accept that Covid-19 was a good reason for the failure to apply. It is clear from the evidence and submissions that the Claimants simply thought that they could say “not entitled” and that would be an end of it and/or they could argue the substantive question of the appropriateness of the Request on this application.

CORONAVIRUS NOT A GOOD REASON TO ALLOW AN AMENDMENT

Pearce v East and North Hertfordshire NHS Trust [2020] EWHC 1504 (QB) Mrs Justice Lambert refused an application to amend and dealt with an argument that the application caused no prejudice because the trial date was bound to be vacated in any event.

Ms Wolstenholme makes two further linked submissions, both of which I can deal with swiftly. Her first point is that the trial may be vacated in any event due to the pandemic so there would be no injustice to my granting the amendment and breaking the trial fixture. However, if in due course, either or both parties were to seek an adjournment, then an application to vacate the trial should be made in the usual way, supported by evidence. Neither she, nor I, can pre-judge the outcome of that application. All that I can say is that it does not follow inevitably that such an application will succeed. It will depend upon the impact of the pandemic upon the availability of witnesses and/or whether the Court accepts that justice could not be done via a remote hearing. Her second point is that if the trial had to be vacated then any adjournment need only be short. However, whilst from the parties’ perspective it may be that the additional evidence can be obtained reasonably quickly (I do not know) and the pleadings regularised, it would be naïve to think that the Court would be able to accommodate the adjourned trial shortly thereafter. Even in normal conditions the listing may be some months after the trial is ready and the effect of the pandemic is that there is bound to be some backlog. What is clear is that the need to re-list this trial will take court time away from other business.

CORONAVIRUS DOES NOT LEAD TO A DIFFERENT RULE AS TO COSTS FOLLOWING DISCONTINUANCE

In Khan v Governor of HMP The Mount & Anor [2020] EWHC 1367  Mr Justice Spencer considered an argument that a different costs order should be made when a claimant discontinued.

  1. Ms Weston QC contends that the normal rule should not apply in this case because there has been a material change of circumstances sufficient to displace the presumption that a claimant who discontinues must pay the defendant’s costs of the claim in accordance with CPR r. 38.6(1).
  2. The change of circumstances she relies upon is the impact of the Covid-19 pandemic on the conduct of the claim, and the alternative opportunity for the same practical relief it provided through changes in the Prison Rules, which (it is said) made the claim itself academic. In her written submissions Ms Weston sets out the history of the correspondence between the parties, hence the detail in which I have recited that history. She submits that it was reasonable for the claimant to issue the claim because there had been no adequate response to the pre-action correspondence; the claimant’s position was vindicated by the grant of permission.
  3. Thereafter, Ms Weston submits, the Covid-19 pandemic and its consequences for prison management affected the conduct of the claim in a number of ways. For example, communication between the claimant’s solicitors and the claimant himself became difficult. In particular it was difficult for the claimant’s solicitors to obtain accurate information in relation to the claimant’s current medical condition, or to have him examined again by his consultant haematologist. On this issue she refers in her later written submissions (30 April), at paragraph 5, to the continuing concern that the claimant remains on a reduced dosage of oral medication because of side-effects. She submits that the priority shifted to securing the claimant’s release on compassionate grounds or on temporary licence (ROTL). The defendants’ insistence that the claimant was being properly and effectively “shielded” from infection was shown to be wrong and became a key issue.
  4. Ms Weston submits that the claim for judicial review had become “academic” as inter-prison transfers were no longer permitted owing to the pandemic. She submits that the unprecedented impact of the pandemic amounts to a change of circumstances which seriously hampered preparation of the claim for judicial review. She accepts that the court should have been placed on notice of this difficulty earlier, but the defendants were well aware of it and were not prejudiced….
  5. Having considered all the parties’ submissions in the light of the relevant principles I am satisfied that there is no good reason in the present case to depart from the normal rule that the claimant must pay the defendant’s costs of discontinuing the claim. My reasons are as follows.
  6. First, there was in reality no change of circumstances so far as the merits of the basis of the claim for judicial review were concerned. The impact of the Covid-19 restrictions did not affect the central factual issue, namely whether the evidence supported the proposition that the claimant could not receive the medical treatment he required whilst detained at HMP The Mount. The evidence on that issue was all one way. The witness statement of Michael Coates made it clear that should the situation arise, on the medical evidence, that the claimant required treatment via a PICC line, the necessary arrangements would be made for him to receive that treatment. His evidence was uncontradicted. A firm assurance was given in the detailed grounds of defence (see paragraph 26 above) that should treatment via a PICC line become necessary requiring transfer to another part of the prison estate, an appropriate decision would then be taken.
  7. Second, for the reasons I have already explained, the claim was predicated on a misinterpretation of the state of the medical evidence in October 2019; there never had been medical opinion expressed that the claimant presently required a PICC line which necessitated his transfer to open prison conditions. That may well have been the long term goal, but he was receiving appropriate oral medication. That continued to be the position as the updated medical records eventually demonstrated.
  8. Third, for the reasons I have already explained in refusing to set aside the notice of discontinuance, the reality was that the claim was bound to fail had it proceeded to a hearing on 30 April. This must have been recognised by the claimant’s legal team. In the claimant’s solicitors’ letter of 22 April (quoted at paragraph 45 above) the claimant was indicating a clear intention to revive the claim at a future date should the application to vacate be granted. That claim challenged the defendants’ continuing refusal to re-categorise and transfer him to open conditions as a breach of Articles 2 and 3 ECHR and a breach of their duties under the Equality Act 2010. It is not correct to suggest that those issues in the judicial review had become academic. That is precisely why the application to vacate was refused.
  9. Fourth, had the hearing proceeded on 30 April, and had it then become apparent that justice could not be done because (for example) the claimant’s solicitors had been unable to obtain the necessary medical evidence owing to the Covid-19 restrictions, it would have been open to the claimant at that stage to apply again (at the hearing) for an adjournment. Although the practical difficulty of a further medical examination was raised in some of the email exchanges before the application to vacate was determined, it is rightly conceded in the claimant’s written submissions (30 April), at paragraph 5, that “this perhaps could and should have been spelled out in more detail in the application to vacate”. As it was, the application to vacate was put principally on very different grounds.
  10. Fifth, to the extent that the Covid-19 pandemic did change the circumstances (which I do not accept), it was certainly not a change of circumstances brought about by any form of unreasonable conduct on the part of the defendants (as identified by Moore-Bick LJ in Brookes: see paragraph 121(iv) above). In this regard, the proposed amendment of the claim to embrace fresh decisions which might or might not be taken on Covid-related issues was, in reality, a distraction from the central issue in the judicial review. The amendments never materialised in any event.

A REMOTE TRIAL IS NOT NECESSARILY UNFAIR

SC v University Hospital Southampton NHS Foundation Trust (Rev 2) [2020] EWHC 1445 (QB) Mr Justice Johnson refused the defendant’s application for an adjournment on the grounds that a trial held remotely would be unfair.  It was held that the trial would not necessarily be held remotely, further a remote trial would not be unfair.

The application is dismissed. It was predicated on the hearing being conducted remotely. There does not currently appear to be any reason why the hearing must be conducted remotely. The premise for the application therefore falls away. In any event (and if it turns out that there is some insurmountable obstacle to a court hearing) a remote hearing could be conducted in a way that is fair to all parties. The application of the overriding objective to the circumstances of this case requires that the hearing should take place next week, even if it had to be conducted remotely.

CORONAVIRUS PROVIDES SOME EXCUSE, BUT IS NOT DEFINITIVE, IN AN APPLICATION FOR RELIEF FROM SANCTIONS

Patel & Anor v Barlows Solicitors (a firm) & Ors [2020] EWHC 2753 (Ch),HHJ Mithani QC

There was then some delay in the First Claimant making the application. Some of the actual delay is attributed to Ms Narshi overlooking matters (plainly, not acceptable but often the case) and the Covid-19 crisis. In respect of the latter, it is right to point out that paragraph 4 of PD 51ZA – Extension of Time Limits and Clarification of Practice Direction 51Y – Coronavirus, issued on 2 April 2020, provides that in so far as compatible with the proper administration of justice, the court will, in respect of the period from 2 April 2020 to 30 October 2020 (when the Practice Direction ceases to have effect), take into account the impact of the COVID-19 pandemic when considering applications for an extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions.