In Stanley v Tower Hamlets LBC  EWHC 1622 (QB), 26 June 2020, unrep. (Julian Knowles J), the High Court has provided a robust addition to the developing body of COVID-19 jurisprudence, holding that a party was not permitted to capitalise upon another’s breaches when they were directly caused by lockdown.
On 13 February 2020, before service of proceedings, the Claimant’s solicitor contacted the Council’s Legal Department and asked whether service would be accepted by email. He was told that service had to be by post and that service by email would not be accepted. On 23 March 2020, the UK Government put the country into ‘lockdown’. On 15 April 2020, the Claimant requested and then obtained judgment in default.
Julian Knowles J found there good reason to set aside the default judgment (r.13.3(1)(b)). That reason was “the unprecedented national health emergency which was unfolding precisely at the time” service was effected by post, when the Claimant’s solicitor “knew or should have known” that the Council’s offices were shut.
The judgment has some interesting dicta on procedure, which could potentially be useful to cite where such a context is key to future claims and applications. For example, at : “The coronavirus pandemic is generally recognised to be the greatest peacetime emergency that this country (and indeed, the world) has ever faced”. And at : “It would be unconscionable in my view for the Claimant to benefit from the unprecedented health emergency which prevailed at the end of March (and which is still subsisting today)”.
The Claimant alleged that the Council should have had a system in place so that proceedings served by post could have been dealt with timeously. However, the court observed that from 23 March 2020 one of the challenges for business was “establishing technological links and putting in place new systems of working”. The Council was not criticised for not having new systems in place in time, and was noted to have acted quickly once default judgment was entered. However, practitioners should not assume that the same approach would necessarily be taken now, months after lockdown began.
Although the court declined to view the Claimant’s solicitor’s actions as sharp practice, it was found that he had exercised “poor judgment”. Serving only by post after lockdown was not “fair or reasonable”, even when the Council had previously said (pre-lockdown) it would only accept service by post. The Claimant’s solicitor should have checked. Ultimately, this judgment is a reminder that the courts will apply common sense and not permit parties to capitalise unfairly on defaults brought about by circumstances beyond their reasonable control – which should be some reassurance for practitioners in these still uncertain times.