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As the country edges further towards an exit from lockdown, you could be forgiven for thinking that the worst of the COVID-19 pandemic was behind us. Whilst (with any luck) the lockdown haircut and use of Zoom as a substitute for the pub will soon be a thing of the past, the consequences of the pandemic in the context of litigation are likely to be felt for some time to come.

These consequences have recently been felt by the Claimant (and her solicitors) in the case of Stanley -v- London Borough of Tower Hamlets, a case involving a claim for breach of data protection by a local council.

Background

Following an investigation, the Council had admitted that a data breach had occurred. In January 2020, the Claimant’s solicitors had written to the Council on a pre-action basis, and then chased this again in February 2020. Neither of those letters received any response from the Council.

The Claimant’s solicitor (facing a deadline in early April 2020 to serve proceedings on the Council) called the Council in February to advise that he would be preparing to serve proceedings on the Council in the absence of a response and asked if the Council would accept service of those proceedings by email. The Council refused, and explained that the Claimant must serve its proceedings by post.

On 25 March 2020 (the Council still not having responded) the Claimant’s solicitor placed the proceedings in the post to the Council, and these were deemed served on 27 March 2020.

Of course, in the meantime the UK had gone into ‘lockdown’ and as a result of this the Council’s offices were manned by only a ‘skeleton staff’ who were ‘not familiar with court proceedings’. As a result, the deadline for an acknowledgement of service by the Council was missed, and the Claimant obtained judgement in default against the Council.

The Council applied to have that judgment set aside and the Claimant resisted that application. After all, the Claimant had done what it was told to do: serve the proceedings by post!

The Court’s decision

The Court, setting aside judgment against the Council, found that it was “not fair or reasonable for [the Claimant’s solicitor] 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.” In these circumstances, the Court held that the Claimant’s solicitor should have contacted the Council “to acknowledge that the situation had changed, and to discuss how proceedings could best and most effectively be served”.

This case is likely to be indicative of the Court’s attitude to tactical advantages which have been gained by one party or another as a result of the pandemic. In this case the Court was critical of the Claimant’s solicitor, despite him having taken steps the month previous to ascertain whether he would be permitted to serve the proceedings by alternative means. In the Court’s own words, “the world shifted on its axis on 23 March 2020” and it was incumbent on him to do more.

Lessons learned

As more and more cases like this come before the Courts in the coming months (where one party has gained an advantage over its opponent as a result of the pandemic), what should litigants do if they have suffered a disadvantage, or when faced with an application to redress that advantage/disadvantage?

If a litigant finds him or herself on the end of a disadvantage as a result of the pandemic (such as the Council in this case, where judgment was entered against it as a result of missed paperwork) he or she should act promptly, take legal advice and (where necessary) make the appropriate application to the Court without delay. In doing so, it should be careful to explain how the pandemic caused the issue, and not just expect the Court to grant relief without cause being shown.

When facing an application for relief from sanctions related to the pandemic, in most cases the first step will be to consider whether more could have been done to avoid the situation in the first place. Whilst it may seem counterproductive to go further than the strict requirements of the rules to ensure documentation is received and actioned promptly, the Courts expect litigants (and in particular their legal representatives) to take these steps. If the Claimant’s solicitor in the present case had called the Council to check, again, on 25 March 2020 whether service by email would be accepted, the decision on this point may have been different.

If, on reflection, an advantage has been gained as a result of the pandemic and more could have been done at the time to ensure that the documentation in question reached its intended recipient, a litigant should seriously consider consenting to a proper application by its opponent to redress the balance. Whilst this may stick in the craw, the costs of unsuccessfully resisting an application (and the potential for an adverse costs order) are likely to leave an even worse taste in the mouth.

If you find yourself on either side of this kind of application, there is no substitute for prompt legal advice on your particular situation. If you require our assistance in relation to an issue raised in this article (or have any other queries about ongoing or prospective litigation) please do not hesitate to contact the Dispute Resolution Team by calling 01603 610911 or by email.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.