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High Court reverses trial judge's decision to refuse adjournment on COVID grounds

High Court reverses trial judge's decision to refuse adjournment on COVID grounds

Arfan Khan appeared successfully in a High Court appeal, which reversed the trial judge’s decision to refuse adjournment of the trial where the Appellant was suffering from Covid symptoms.

The Claimant (Respondent) had brought a claim against the Defendant (Appellant) for a declaration that an agreement dated 27 November 2018 was binding pursuant to which the Appellant was required to pay a sum of money to the Respondent.

The trial was listed to start on 6 December 2021. HHJ Lethem KC refused the Appellant’s application for adjournment and proceeded with the trial. He granted the declaratory relief sought and gave judgment for the Respondent.

At an oral renewed permission to appeal hearing, Mrs Justice Steyn granted the Appellant permission to appeal on three renewed grounds of appeal, namely:

  1. The judge was wrong to hold that the 2018 agreement was binding;
  2. The judge applied the wrong test in refusing to adjourn and/or was wrong not to adjourn for a short period to enable a remote hearing to take place; and
  3. The judge was wrong to proceed on the basis that there was an arbitration agreement or whether it was a matter of semantics whether there was such an agreement.

At the appeal hearing, the judge considered as the first issue whether the refusal to adjourn the trial was wrong. If so, it was common ground that the judgment could not stand.

The Appellant had applied to adjourn for three reasons (i) he required additional time to prepare following a late change in legal representatives; (ii) he suffered from depression and anxiety and (iii) he had symptoms of COVID.

The Appellant disputed the suggestion that his symptoms were not genuine and had referred to an email where it stated that he had booked a PCR test, the results of which would arrive in two days, and was required to self-isolate. He could not leave his home save to post the test kit. His son had described him as suffering from shortness of breath and a lot of coughing.

The trial judge refused the adjournment, not on the basis that he did not have COVID symptoms, but because he thought that the Defendant should have taken the lateral flow test to determine whether he had COVID.

Mr Justice Chamberlain held that, if the application to adjourn had been pursued purely because of the late change of representatives and because of the mental health issues, the judge’s analysis would have been exemplary. However, as to the COVID issue, Mr Justice Chamberlain held that the judge considered the evidence with care, but was wrong in refusing to adjourn the trial and enquire about a remote hearing because:

  1. The government guidance was that those who had symptoms of COVID 19, which included shortness of breath and coughing, should take a PCR test. The lateral flow test was for those who were asymptomatic. On the guidance, the Appellant had to self-isolate.
  2. The judge should have made enquiries to ascertain whether the Appellant required a remote hearing bearing in mind that his son who applied for the adjournment was not a lawyer and had not requested a remote hearing. Whilst the decision to adjourn was a case management decision, the decision to proceed without enquiring about a remote hearing fell outside the range of responses open to the trial judge.

As a result, the Mr Justice Chamberlain ordered a retrial.

It was not necessary to reach a conclusion on Grounds 1 and 3 which raised matters for the retrial.

Arfan Khan acted for the Appellant at the appeal hearing, and at the renewed oral permission to appeal hearing instructed by gunnercooke LLP. 

Read the full judgment here.

Arfan Khan

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