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5.01.22

Covid-19 no longer an acceptable excuse for procedural failings

Covid-19 and the restrictions imposed as a result have inevitably had an impact on whether court deadlines can be met in every case. What if you need to make an application for an extension of time as a result of Covid restrictions? What are the principles that the Court will apply? Does the Court’s sympathetic attitude during 2020 remain the same as of now?

In the recent case of Day v Womble Bond Dickinson (UK) LLP [2021] EWHC 3236 (QB), Deputy Master Toogood refused relief from sanctions and a time extension following the Claimant's failure to apply to court to amend its Particulars of Claim, in breach of a court order. The effect of the COVID-19 pandemic on the Claimant's solicitors was held not to be a good reason for the breach.

In this case, the Claimant failed to comply with a court order requiring him to apply to court to amend his particulars of claim by 7 May 2020, in the absence of the Defendant's agreement to the draft amendments. Following a letter from Defendant noting the Claimant’s breach, the Claimant applied for relief from sanctions and a time extension on 4 September 2020.

In response to the breach, the Claimant’s solicitor blamed the effects of COVID-19 for his mistake or oversight in not making the application. He said that he had an increased workload following staff furlough and redundancies. The Deputy Master had sympathy with this up to a point, but note that it was a firm's responsibility to ensure that there were adequate remaining staff to cover the work which had to be done. If the delay had been days or even a few weeks in the initial stages of the pandemic, he may have considered that the reorganisation and new ways of working constituted a reasonable excuse for missing the deadline. However, the pandemic could not excuse a four-month delay. During this time, the Claimant’s solicitors had pursued an application to appeal to the Supreme Court in the same case, showing that they were able to continue working effectively. Further, the Claimant’s solicitor contracting COVID-19 in early April, was not a reasonable excuse for missing a deadline on 7 May and not seeking relief for four subsequent months.

The Deputy Master distinguished Stanley v London Borough of Tower Hamlets [2020] EWHC 1622, as the Defendant in that case acted more promptly in applying to set aside a default judgment. He also considered that the overall delay was relevant at stage three of the Denton test (Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906) - when considering all the circumstances. Due to the Claimant’s failure to particularise his loss in the amended pleading, the Defendant still did not know what case it had to meet, over nine years from the alleged negligence. The Deputy Master refused the Claimant’s relief from sanctions and dismissed his claim.

Earlier cases are consistent with this relatively tough line, as in Boxwood Leisure Ltd v Gleeson Construction Services [2021] EWHC 947 (TCC), where O’Farrell J held that the pandemic did not excuse a diary error or mistake which was partly caused by remote working. It was the claimant’s solicitors’ responsibility to ensure that deadlines were met.

As those cases demonstrate, the courts have somewhat hardened their attitude to pandemic-related excuses.  This approach will more likely than not result in a stream of solicitor negligence claims against those who still consider Covid-19 an acceptable excuse du jour in 2022.

 

Click here to see how Brett Wilson LLP can assist you in bringing a professional negligence claim. 


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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