Case Alerts

Mr and Mrs Backhouse v David Robert Earl (executor of the Estate of Mr Anthony Petersen (deceased) [01.09.2020]

On 1 September 2020, HHJ Berkley sitting as an Appeal Court Judge handed down his written Judgment, upholding the first instance decision of DJ Nichols dated 25 November 2019 in which he refused to grant the Claimants relief from sanctions, struck out the Claimants’ claim on the basis that the Claimants could call no factual evidence and awarded the Defendant costs of the proceedings.

The Claim

The Claimants brought a professional negligence claim against a building surveyor, who was instructed in 2001 to supervise the conversion works to a Grade II listed building, which included the installation of a damp-proofing system to prevent flooding to the basement kitchen area. The Claimants alleged that the Defendant was negligent in connection with the damp-proofing works, which had been carried out, such that their basement flooded on 6 January 2014. The Defendant died in May 2014. The Claimants issued proceedings on 17 January 2017 against his estate, alleging that the damp-proofing system was defective and had been inadequately installed. The proceedings were defended by Plexus in respect of limitation, breach of duty, causation and loss. On 3 December 2018, there was a Case Management Conference where the court gave procedural directions to advance the litigation to trial. The relevant procedural directions were as follows:

• Disclosure by 4pm on Friday 15 February 2019
• Inspection by 4pm on 22 February 2019
• Witness statements by 4pm on 19 April 2019
• Expert reports by 17 May 2019, with experts to meet to discuss their positions by 7 June 2019 and joint statement of issues by 21 June 2019
• Pre-Trial Settlement Hearing on the first open date after 5 July 2019
• Pre-Trial Review on the first available date after 30 September 2019
• Trial window 4 November 2019 to 31 January 2020

The Claimants failed to exchange lists of documents until 17 August 2019 and witness statements were served on the eve of the strike out hearing, and filed at court during the course of the hearing. The Pre-Trial settlement hearing had been lost and the remaining procedural directions were out by 7 months. The Defendant made an application to strike out the Claimants’ claim.

 The first instance decision

DJ Nichols considered the three-stage test set out in the Court of Appeal decision in Denton, as follows:

1. Serious or Significant Breach

DJ Nichols concluded that the Claimants’ failure to effect disclosure by 6 months and serve their witness statements by 5 months, despite being repeatedly chased by the Defendant, was serious and significant because the trial window had been lost. The Claimants reluctantly did not challenge this on appeal.

2. No good reason

The Claimants’ reason for their failure to comply with the directions was because of ongoing negotiations. This was not accepted by DJ Nichols. Negotiations was not a good reason for disregarding the procedural directions and, in fact, as the Defendant maintained, contrary to the Claimants’ submissions no offers to settle had been made. The Claimants reluctantly did not challenge this on appeal.

3. All the circumstances

The Claimants had failed in all the circumstances of the case to conduct the litigation efficiently and at proportionate cost, and had failed to enforce compliance with rules, practice directions and Orders.

DJ Nichols, in striking out the claim, gave an ex tempore Judgment, which characterised the Claimants’ breaches as “extreme” and “breath-taking” in nature, with the entire timetable having been affected to such an extent that the trial could not be heard within the trial window. DJ Nichols found that this had caused actual prejudice to the Defendant.

The Claimants sought permission to appeal.

 The Appeal

The Claimants were initially refused permission to appeal. However, a hearing was requested and HHJ Berkley heard the application for permission to appeal and the appeal simultaneously. The hearing was conducted remotely in May 2020 due to Covid-19 restrictions. Essentially, this was a hearing about how the Court should deal with the third stage of the Denton test.

HHJ Berkley concluded that there was no question that the litigation had been conducted inefficiently and at disproportionate cost for a considerable time with directions being ignored, court time wasted and the Defendant being put to the waste of time and expense of chasing the Claimants. The persistent breaches was a relevant factor. The Claimants took no action to remedy their breaches and had ultimately forced the Defendant to make an application. Conversely, the Claimants were astonishingly slow with their application for relief from sanctions, despite warnings and invitations from the Defendant. HHJ Berkley importantly highlighted that the Defendant had initially agreed in May 2019 not to oppose any application.

The Defendant relied upon the decision in Clearway Drainage Systems Limited v. Miles Smith Limited [2016] EWCA Civ 1258. In that case, the defendant applied to strike out the claimant’s claim due to their two-month delay in serving witness statements. The claimants applied for relief from sanctions immediately after the defendant made the application, and served witness statements four days later. The Court of Appeal upheld the decision of the judge at first instance to refuse relief from sanctions, despite the fact that this would effectively terminate the claimant’s claim. The breach had been serious and significant despite the fact that the trial date had not been imperilled; there was no good reason for the breach; the application for relief had not been made promptly, and the need to ensure efficient conduct of litigation and compliance with court orders weighed against the grant of relief. However, the Claimants’ conduct of this matter had been, significantly more egregious than the conduct of the claimant in the Clearway case.

HHJ Berkley concluded that the Claimants’ brazen and unapologetic disregard of the Court’s Orders was such that DJ Nichols’ decision was almost inevitable. The learned Judge concluded that DJ Nichols was entitled to exercise his discretion and, given the Claimants’ egregious failures, there was no basis for suggesting that his decision was so unreasonable that it fell outside the wide discretion afforded to him. HHJ Berkley concluded that any appeal by the Claimants had no real prospect of success and, accordingly, the application for permission to appeal was dismissed.

Comment

This case serves as a useful reminder of the crucial importance of complying with rules, procedural Directions and Orders, and that deadlines are not missed, overlooked or simply ignored. Notably in the current-Covid-19 era where many people are working from home, it is of paramount importance that a robust diary management system is in place to ensure that procedural deadlines are appropriately recorded with timely reminders in place to avoid missing procedural deadlines. However, where there has been a breach, it is important that an extension of time is sought and that an application is made promptly to the court for relief from sanctions without delay (before the breach occurs) irrespective of whether or not the application is made with the consent of the other party.

The Defendant was represented by Alain Orengo, a Partner at Plexus Law, London.

To download this Case Alert as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Alain Orengo, Partner

T: 020 7220 5861    |   M: 07816 073 864   |   E: alain.orengo@plexuslaw.co.uk

 

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

Synopsis

The Court of Appeal ruling in this case has been long awaited, following the decision at first instance in favour of the Chief Constable. The Claimant argued that the use of automatic facial recognition (“AFR”) technology was unlawful in that it interfered with his Article 8 right to respect for his private life. He also alleged that it breached the Data Protection Acts of 1998 and 2018.

Upholding part of the appeal, the court found that the AFR system did constitute an interference with Article 8 rights, not in accordance with the law, but would be proportionate if a sufficiently narrow local policy were framed.

 Facts

AFR is a new technology being piloted by the police, to assess whether two facial images depict the same person.  “AFR Locate” is used at large gatherings. The police hand out leaflets and advertise on social media so as to alert the public to the use of AFR. Prior to the event, police will upload and process a ‘watchlist’ of:

(a)   persons wanted on warrants;

(b)   individuals who are unlawfully at large;

(c )   persons suspected of having committed crimes;

(d)   missing persons;

(e)   individuals whose presence at a particular event causes particular concern;

(f)    persons simply of possible interest to police for intelligence purposes; and

(g)   vulnerable persons.

The watchlist database of  400 – 800 people is turned into biometric data unique to each face. CCTV is processed by AFR Locate to recognise human faces. It converts images of these faces into biometric templates and looks for a match with the templates on the watchlist. It can process up to 50 faces per second. Up to half a million faces can be scanned at a single event and compared with those on the watchlist.

If AFR Locate makes a match, it will alert its operator and display the images for comparison. No action is taken unless the human operator is satisfied of the need for it. A decision will be made as to whether to approach the potentially matched person. If no match is detected, the software will automatically delete the images with 24 hours. The biometric template is deleted immediately, and the CCTV feed and details of those matched is deleted after 31 days.

 Decision

The interference of the Art 8 right was in breach. The local South Wales Police (“SWP”) policy contained wide areas of discretion (watchlists and locations) where AFR may be deployed. This meant that the data protection impact assessment prepared by SWP did not meet the requirements of s. 64 DPA 2018.

The Court also held that SWP had not done all that they reasonably could to fulfil the Public Sector Equality Duty (PSED) pursuant to s 149 (1) EA 2010. It was held that, as AFR is a novel and controversial technology, all forces that intend to use it in the future should satisfy themselves that everything reasonable had been done in order to make sure that the software does not have a racial or gender bias.

 Legal analysis

Proportionality is key. A fair balance has to be struck between the rights of the individual and the interests of the community. This means that AFR Locate may lawfully be used in future, so long as the police put in place an appropriate policy, undertake adequate data protection and equality impact assessments and put in place a more detailed policy document.

SWP will now need to draft a compliant policy document which must take into account the provisions of the Data Protection Act 2018.

The impact assessment prepared by SWP did not meet the requirements of s.64 DPA 2018. It proceeded on the basis that Article 8 was not infringed. The equality impact assessment prepared by SWP did not demonstrate compliance with s.149(1) of the Equality Act 2010.

Practice points

Speaking for the South Wales Police, Chief Constable Matt Jukes welcomed the judgment, saying: “I am confident this is a judgment that we can work with”.

South Wales Police have already committed to adjust their policies in line with the Judgment and to work alongside the Surveillance Camera Commissioner, Home Office, College of Policing and National Police Chiefs Council to address the issues raised and to allow them to continue to make use of live facial recognition and biometric technologies.

The use of facial recognition will continue to draw public interest as there is significant opposition to this being used for any purpose. A ban on such technology has been suggested by Liberty with Megan Goulding, a lawyer for Liberty, commenting that: “The Court has agreed that this dystopian surveillance tool violates our rights and threatens our liberties … it is time for the Government to recognise the serious dangers of this intrusive technology. Facial recognition is a threat to our freedom – it needs to be banned.”

Police forces interested in the deployment of facial recognition have a difficult task in justifying the use of such technologies when balancing the potential benefits with the risks identified by the Court of Appeal and the potential to violate data protection, equality, and human rights laws.

Steps that need to be taken are as follows:

1. Draft a policy to narrow the breadth of discretion in relation to the selection of those on watchlists, and the locations where AFR may be deployed, so that AFR Locate may be said to be in accordance with the law;
2. Undertake an adequate data protection impact assessment;
3. Undertake an adequate equality impact assessment in compliance with s.149(1) EA 2010; and
4. Put in place a more detailed policy document which complies with s.42(2) DPA 2018.

To download this Case Alert as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Andrew Steel, Partner

T: 0161 245 7965   |   M: 07557 232 419   |   E: andrew.steel@plexuslaw.co.uk

Amy Olive, Legal Assistant

T: 0161 244 6927   |     E: amy.olive@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

 

 

Synopsis

This has become the latest case in a developing trend where the Courts have been disinclined to strike out a claim involving alleged negligence of  police officers. This developing pattern of cases has demonstrated a “flux” 1 in this area.

The issue considered in this application to strike out was whether the Court can differentiate between the police positively creating a danger/making it worse or instead refraining to protect someone from the risk. Case law has determined that liability will usually attach in the case of a positive acts, but not where there is an omission .

Facts

Mr Kendall, (“K”) had been driving down a country road in winter. Due to a water leak a portion of the road had frozen over resulting in black ice. The patch of black ice caused K to lose control of his car and leave the road. K was a road-gritter and so was familiar with the issue of black ice and had not sustained life threatening injuries. As such, whilst awaiting recovery, he warned other approaching drivers of the hazardous road conditions by signalling for them to slow down.

The police later arrived on the scene and erected a warning sign, cleared the wreckage of K’s vehicle and cleared the resulting debris from the collision. As they were leaving the police removed the previously erected warning sign and transported K to hospital. As K was taken to hospital by the officers attending no one remained at the scene and “no functional steps” 2  were taken to ensure notification of the hazard to other motorists.

The Claimant’s husband (Mr Tindall) was later driving on the road in question when an oncoming driver (Mr Bird) lost control of their vehicle and collided with his. Sadly, both Mr Bird and Mr Tindall were tragically killed. A police disciplinary tribunal found that the officers attending the scene of the first accident (involving K) were guilty of misconduct and had committed failures of operational training.

The Claimant submitted that the police officers’ removal of the driver who had been warning the traffic, together with the warning sign that they had erected were positive acts that were causative of there being no warning to alert motorists of the hazard the road posed.

The Chief Constable sought to strike-out the claim on the basis that there was no duty of care.

Master McCloud dismissed the application to strike-out and found as follows:

• The legal position, following recent cases, was that although the police generally had no positive duty to protect individuals from harm, they could come under such a duty where they took steps which either created a danger or made it worse 3;
• What amounted to such an intervention was a very fact dependent exercise. The police officers’ removal of the person who was warning traffic and the police warning sign could amount to a sufficient intervention that made matters worse 4;
• The ambiguity of whether steps were acts or omissions – or “made things worse” versus “did not make things worse” had to be resolved at trial 5.

Act vs Omissions – Previous case law

In Robinson v Chief Constable of West Yorkshire Police 6 it was held that a duty of care could be imposed on the police where they performed a positive act which created danger or harm. Lord Hughes, dissenting, stated in Robinson  7 that there was “no firm line capable of determination between a case of omission and of commission” and that “the great majority of cases can be analysed in terms of either”.

In Chief Constable of Essex Police v Transport Arendonk Bvba 8  police officers arrested the driver of a lorry containing cargo. Whilst the driver was in police custody the cargo was stolen. The judge concluded that it was at least arguable that the police had assumed responsibility to the haulier to keep the lorry safe. As such the case proceeded with the issue to be determined at Trial and was not struck out.

In Robinson it was held that police officers created a danger to bystanders by performing, in a built up area, the arrest of a person who they anticipated would try to evade arrest. That risk materialised and the Claimant was injured in the struggle that ensued. This can be contrasted with Arendonk, where it is arguable that simply arresting the driver to whom the cargo belonged did not, of itself, create the danger of the cargo’s being stolen in the area.

Legal Analysis

As a result of this run of cases it must be arguable that the police were under no duty to prevent the two cars from colliding with each other unless they had assumed a duty of care to those road users or where they had done something to prevent the original driver from continuing to warn others of the danger.

The court considered it at least arguable that by erecting a road sign warning of the hazard, the police had assumed such a duty.

In the final concluding remarks at paragraph 19 of the judgment, the court concludes that the application to strike out is dismissed on the basis that the argument that the police “made matters worse” is not bound to fail on the present authorities and hence the issue should be considered at Trial.

Practice points and concluding remarks

The trend of case law regarding the legal duty of care remains shrouded in ambiguity. It will be necessary to closely monitor the subsequent litigation of these cases that have been allowed to proceed – assuming indeed that they do reach Trial. For now, given the reluctance to strike out cases of this type, practitioners should be wary of making early applications to strike out prior to any definitive judgment being available. Even if one of these cases reaches trial, it is easy to see a decision being heavily caveated with references to “fact specific” issues. It seems virtually impossible to have a one size fits all solution to this question at the moment.

References:

1. Para 3 Tindall
2. Para 5 Tindall
3. Para 10 Tindall
4. Para 15 Tindall
5. Para 15 Tindall
6. [2018] UKSC 4; [2018] AC 736
7. Para 117 Robinson
8. [2020] EWHC 212

To download this Case Alert as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Andrew Steel, Partner

T: 0161 245 7965   |   M: 07557 232 419   |   E: andrew.steel@plexuslaw.co.uk

Emelia Gahan, Trainee Solicitor

T: 0161 245 7955   |     E: emelia.gahan@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

We have had recent success in obtaining a discontinuance, and also partial recovery of costs, acting for an Emergency Care Practitioner in a claim involving a failure to refer a patient suffering from an undiagnosed  wrist ligament injury. The Claimant alleged that our client, an Emergency Care Practitioner (a clinician with enhanced skills in medical assessment and extra clinical skills over and above those of a standard paramedic, or qualified nurse) and the Co-defendants, both GPs, negligently failed to examine him adequately and failed to refer him to an orthopaedic surgeon.

Briefly, the Claimant had suffered a workplace injury to his wrist, he attended A&E and underwent an x-ray and examination and no fracture was present. The Claimant was diagnosed with a sprain injury. The Claimant attended our client some 8 weeks post-accident, seeking a physiotherapy referral. The Claimant was subsequently diagnosed with a rupture of the scapholunate ligament.

The claim, like many others, was made on the assumption that a delay in diagnosing an injury must equate to negligent treatment. The Claimant failed to put forward any adequate case on causation and we successfully obtained an Order that if the Claimant did not amend his causation position, the matter would be struck out.

In order to defend this claim, we obtained robust evidence from an expert  GP and from a Consultant Orthopaedic Surgeon. Our expert GP advised that an Emergency Care Practitioner does not have the ability to refer a patient directly to an Orthopaedic Surgeon, unlike the GP Co-defendants. Further, the symptoms the Claimant was alleging would have been present if the Defendant had carried out an adequate examination, were only relevant to a fracture injury and not the far less specific complaints which are present in a ligament injury. Our expert also advised that a scapholunate ligament could not be detected in a primary care settling by an Emergency Care Practitioner.

In relation to causation, our Orthopaedic  expert advised that even if the Claimant had been referred to an orthopaedic surgeon, it is unlikely he would have undergone surgery, due to the known poor outcome of such treatment.

Upon service of our client’s amended Defence, the Claimant was persuaded to discontinue against our client and to contribute to our defence costs.

The Defendant was represented by Lesley Deane from Plexus Law.

To view/download this Article as a PDF please click here.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Lesley Deane, Solicitor

T: 020 7220 5912   |   E: lesley.deane@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Update.

A claim for in excess of £1.5m brought by a 60 year old former managing director, Richard Walkden, against Drayton Manor Park has been dismissed by HHJ Murdoch on the grounds it was dishonestly exaggerated.

On 18 April 2014 Mr Walkden, his wife and son were in a gondola at the theme park when it swung after it was pushed too hard by a ride operator. Mrs Walkden and their son suffered very minor injuries. Mr Walkden in contrast claimed to have suffered a severe back injury and claimed to have developed a chronic pain syndrome which prevented him from working normally. He alleged his Leicestershire based ground source heat pump company, Eartheat, went downhill over the next 3 years forcing him to sell it for a nominal sum after a heart attack resulting in him losing over £1m. He also claimed he was in so much pain he could not bend his back at all and needed care from his wife for 2 hours every day.

Six years after the accident, a two week trial took place in March 2020 at which Mr Walkden was represented by Satinder Hunjan QC and Affinity Law. When the claim was litigated, Drayton Manor’s insurers, QBE Insurance, instructed Andrew Mclaughlin of St John’s Chambers and Anthony Bushell, Partner at Plexus Law.

Mr Walkden was cross-examined over 2 days at trial during which the Judge held he groped for explanations when confronted with inconsistencies in his claim. Mr Hunjan QC urged the court to accept his client was honest and truthful and he had been left seriously disabled by what he alleged was a horrific accident.

In a written judgment handed down on 7 July 2020 the Judge said Mr Walkden was evasive, he misrepresented and exaggerated the effects of the accident, he was untruthful about his past medical history, he failed to disclose documents and he lied about the reasons he had stopped work. The Judge found Mrs Walkden was also not credible.

Five medical experts, as well as an accountant, were called to give evidence on Mr Walkden’s behalf including Consultant Neurologist, Dr Stephen Allder and Professor of Psychological Medicine, Professor Kathryn Abel, but their opinions were rejected, the Judge saying he preferred the evidence of each of the Defendants experts who had also carefully analysed covert video surveillance of Mr Walkden which showed he had a good range of movement of his back and was far less disabled than he had claimed.

Mr Walkden had made a separate claim on an income protection policy following, what the court found to be, an unrelated heart attack in 2017 but resisted disclosing the documents he had submitted in support of that claim until shortly before the trial and only after relentless pressure from Plexus Law, who obtained 2 court orders against him. Despite this, some important documents were not even sent until after the trial had finished.

The Judge held the documents showed Mr Walkden had lied to the court and this reinforced his conclusion about Mr Walkden’s lack of credibility.

The Judge assessed damages at £17,600, just 1% of the damages claimed, but ruled Mr Walkden should receive nothing, and his claim should be dismissed with him paying the costs of the entire action because he had been fundamentally dishonest.

Anthony Bushell said:

“A forensic investigation of the case and detailed analysis of the voluminous documentation and medical records, combined with social media profiling, covert surveillance, the instruction of highly experienced medical experts and excellent Counsel, all backed by QBE, meant we were able to evidence to the Court that the Claimant was bringing a hugely exaggerated and fundamentally dishonest claim which resulted in the Claimant receiving nothing other than an order to pay the costs of the entire action on an indemnity basis.”

The Defendant was represented by Julian Mahon of QBE, Leeds, Anthony Bushell, of Plexus Law, Evesham and Andrew McLaughlin of St Johns Chambers, Bristol.

To download this Case Alert as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law/St John’s Chambers:

Anthony Bushell, Partner

T: 01386 578 886   |   E: anthony.bushelll@plexuslaw.co.uk

Andrew McLaughlin, Barrister

T: 0117 923 4700   |     E: Andrew.McLaughlin@stjohnschambers.co.uk   |    W: www.stjohnschambers.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

Melanie Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB)

1. Plexus Law recently succeeded before Knowles Julian J. in setting aside judgment in a claim for breach of the Data Protection Act/GDPR, Misuse of Private Information, Breach of Confidence and Interference with Private and Family Life under Article 8 of the European Convention on Human Rights.
2. Judgment had been entered after proceedings were served by post just 2 days following the commencement of the Covid-19 pandemic lockdown, when the Defendant’s offices were closed (a fact that the Claimant’s Solicitor was aware of) and nobody from the Defendant knew that service had been effected. The Claimant’s Solicitor made no attempt to satisfy himself that service by post was still acceptable (having been told 6 weeks earlier that it was).

Background

3. The Claimant brought an action for damages after the Defendant allegedly revealed her private data. Proceedings were issued on 4^th December 2019 and the Claimant sought damages for “psychological distress, stress, inconvenience and financial loss.”
4. On 23^rd January 2020, the Claimant’s Solicitor sent the Defendant a letter before claim by post and email. No response was forthcoming and so a second letter/email was sent on 6^th February 2020. Finally, on 13^th February 2020, the Claimant’s Solicitor telephoned the Defendant’s Legal Services Department and spoke to an unnamed worker who told him that it was not his file but that proceedings could only be served by post. Service by email was not acceptable. The Covid-19 lockdown commenced on 23^rd March 2020.
5. Two days later, on 25^th March 2020, the Claimant’s Solicitor served proceedings on the Defendant by post. These were deemed served on 27^th March 2020. Acknowledgment of Service was due by 9^th April 2020 and when none was forthcoming, the Claimant’s Solicitor applied for default judgment on 15^th April 2020. This was granted by Senior Master Fontaine on 17^th April 2020.
6. Once the Defendant instructed Solicitors on 27^th April 2020, it quickly became apparent that Judgment had been entered. The Defendant therefore applied to set judgment aside. Plexus Law argued that judgment should be set aside for two reasons.

Limb 1 – Real prospect of successfully defending the claim

7. Plexus Law submitted that the Defendant had a real prospect of successfully defending the claim. The Claimant had failed to provide evidence that any breach by the Defendant had, in fact, caused her actionable injury or loss – the lack of such evidence meant that causation remained an open question. “Without loss, there is no cause of action.”

Limb 2 – Some other good reason

8. The Defendant also argued that there was “some other good reason” why Judgment should be set aside, pursuant to CPR 13.3(1)(b). That reason was that proceedings were served by post on the Defendant’s premises when the Claimant’s Solicitor knew these to be closed, and he failed to ascertain whether anyone was there who could deal with the matter at a time of national emergency. He failed to take into account the overriding objective and further, failed to consider the best-practice guidance issued by APIL and FOIL to the effect that firms should communicate with each other and temporarily agree to accept service by email during the Covid-19 pandemic.
9. In response, the Claimant argued that the Defendant only had itself to blame for service being effected by post, having failed to respond to her Solicitor’s letters dated 23^rd January 2020, 6^th February 2020 and 13^th February 2020. The Defendant itself had advised on 13^th February 2020 that service by post was required, and in any case, by 9^th April 2020, it should have had a system in place to deal with post. If it had had one, then Judgment would never have been entered.
10. Knowles J. accepted the Defendant’s arguments with enthusiasm. In particular, he noted that:

“33. Even if I am wrong about my earlier conclusion, I am satisfied that there is a good reason to set aside the default judgment. That reason is the unprecedented national health emergency which was unfolding at precisely the time Mr. McConville posted his documents to the Council. From 23^rd March 2020 onwards, the country was grinding to a halt and every employer and business in the UK – and indeed across the world – was suddenly having to develop new ways of working and to find ways of coping with employees not being able to travel into work. There were myriad problems and challenges to be faced, including, for example, establishing technological links and putting in place new ways of working. Parents had to worry about children no longer being able to go to school and all the associated childcare issues related to that. Emergency plans were having to be implemented and rapid adjustments made across all sectors of the economy.”

11. In the circumstances, the Claimant’s Solicitor failed to explain why he thought it appropriate to post documents to the Defendant’s offices “…when he knew or ought to have known they were shut and the Council was highly unlikely to be in a position to respond.” More than that, “Mr. McConville took no steps to ascertain whether the papers had been received and were being processed….The world shifted on its axis on 23^rd March 2020 and it was incumbent on him as a responsible solicitor and an officer of the court to contact the Council to acknowledge that the situation had changed and to discuss how proceedings could best and most effectively be served.” This conduct illustrated poor judgment. “A moment’s thought on his part would have shown that it was not fair or reasonable for him simply to place papers in the post to an office that he knew or should have known had been closed down two days before because of a national emergency.”

12. Moving to the question of whether relief from sanction should be granted, Knowles J accepted that it should, and paid particular attention to para. 4 of CPR PD 51ZA which states, “In so far as compatible with the proper administration of justice the court will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings and applications for relief from sanctions.”

Analysis

13. The author is unaware of any other reported cases dealing with service during the Covid-19 pandemic lockdown or turning on paragraph 4 of PD 51ZA. This case certainly places great importance on the need for parties to show common sense and reasonableness in the manner and timing of service of proceedings. Knowles J felt very strongly that the Claimant’s Solicitor had not acted reasonably in serving proceedings just 2 days after lockdown started without making the slightest effort to ensure that somebody would receive those proceedings. He did not find that to be sharp practice, but was highly critical of such poor judgment. The Defendant’s inability to acknowledge them was entirely due to the emergency situation created by the pandemic.
14. It is to be hoped that Claimant representatives will pay heed to this decision in order to avoid the criticism (and adverse costs consequences) that befell the Claimant’s Solicitor in this case.

To download this Case Alert as a PDF please click here.

The Defendant was represented by Nicola McDougall, Associate, of Plexus Law and by Counsel (and author of this article) Howard Cohen of Farrar’s Building.

If you would like to know more about this matter, please speak to your contacts at Plexus Law/Farrar’s Buildings:

Nicola McDougall, Associate

T: 020 8774 0807   |   M: 07429 050 699   |   E: nicola.mcdougall@plexuslaw.co.uk

Howard Cohen, Barrister

T: 020 7583 9241   |     E: HCohen@rarrarsbuilding.co.uk   |    W: www.farrarsbuildings.co.uk

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