Judgment Set Aside To Prevent Claimant Obtaining Advantage From COVID-19 Health Emergency

• Published date: 14 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Coronavirus (COVID-19), Data Protection, Trials & Appeals & Compensation, Reporting and Compliance
• Law Firm: Clyde & Co
• Author: Ms Mary Edis

The High Court has set aside a judgment obtained in the initial stages of the lockdown period, where the Defendant did not file an Acknowledgment of Service after proceedings were served on an empty office. In the view of the Court, the Claimant had not taken obvious steps to ensure that service was "possible and feasible" in the manner previously agreed.

Mr Justice Knowles found that it would be unconscionable to have allowed the Claimant to benefit from an unprecedented health emergency. It was noted that whilst the Claimant had not acted deliberately to gain a procedural advantage, they had "exercised poor judgement". However, in setting aside the judgment, the decision makes clear that obtaining an advantage over other parties to the litigation as a result of the unusual circumstances in which we find ourselves will not be tolerated by the Court.

The Court dismissed suggestions that the Defendant had not responded adequately prior to the issue of litigation, and there was a pattern of consistent dilatoriness on their part. This alleged "cavalier" attitude was not the reason for the Defendant's failure to file an AOS.

Background

The Claimant instructed solicitors to pursue a claim against the Defendant after it disclosed her medical records without consent to various parties following a child protection meeting. Protective proceedings were issued by the Claimant in late 2019, and the Defendant was informed that Particulars of Claim would be served. The Claimant was informed that service by email would not be accepted and that service of proceedings should be served by post.

Following the decision of the UK Government, the country went into lockdown on 23 March 2020. In accordance with official guidance, the Defendant closed its offices with staff working remotely from date. A 'skeleton staff' continued to work in the office after 23 March but were unfamiliar with court proceedings.

On 25 March 2020, proceedings were sent to the Defendant by post, the deemed date of service being 27 March 2020, and an Acknowledgment of Service due by 10 April 2020. The Claimant applied for default judgment on 15 April 2020. This was granted on 17 April 2020.

Application to set aside

The Defendant's solicitor was not instructed until 27 April 2020, then advising she was instructed to accept service of proceedings. The Claimant's solicitor replied that judgment in default had already been entered.

The Defendant applied to have judgment set side, and for relief from...