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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB) (26 June 2020) URL: https://www.bailii.org/ew/cases/EWHC/QB/2020/1622.html Cite as: [2020] EWHC 1622 (QB) |
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2020] EWHC 1622 ( QB) | ||
QB-2018-004329 |
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
||
2020 |
B e f o r e :
____________________
| Melanie Stanley |
Claimant |
|
| - and - |
||
| London Borough of Tower Hamlets |
Defendant |
____________________
Howard Cohen (instructed by Plexus Law) for the Defendant
Hearing dates: 18 June
2020
____________________
Crown Copyright ©
The Honourable Mr Justice Julian Knowles :
Introduction
2020.
It also applies for relief from sanctions.
2020.
However, because of the late and defective service of papers by the Claimant's solicitor, that hearing had to be aborted and the matter re-listed. I then held a remote hearing on 18 June
2020
at which the Claimant was represented by Mr Suterwalla and the Council was represented by Mr Cohen.
The factual background
Background to the claim
Background to the default judgment application
2020
the Claimant's solicitors sent a letter before claim to the Council by post and email. No response was received. On 6 February
2020
the Claimant's solicitors sent a second letter by post and email pointing out that the Council was in breach of the pre-action protocol (which required a response within 14 days). The Claimant's solicitor gave the Council a further seven days to respond.
2020
the Claimant's solicitor, Mr McConville, telephoned the Council's Legal Services Department. He was provided with the name and contact details of the file handler, who was not himself present in the office at the time; the person to whom Mr McConville spoke could not assist as it was not his case. Mr McConville told that person he would instruct counsel to draft Particulars of Claim in readiness for the service of proceedings. Mr McConville also emailed the file handler in the same terms. Mr McConville asked if the Council would accept service of proceedings by email and was told service had to be by post and that service by email would not be accepted. This point is important in light of what happened later.
2020.
The Council had still not replied by that date. Mr McConville put the relevant documents in the post on 25 March
2020
which meant that the deemed date of service was 27 March
2020.
The Council's Acknowledgement of Service was thus due on or before 9 April
2020.
2020,
the Council had not filed an Acknowledgment of Service. Mr McConville therefore applied for judgment in default on 15 April
2020.
This was granted by Senior Master Fontaine on 17 April
2020.
The Council's evidence
2020.
She wrote to the Claimant's solicitor indicating that she was instructed to accept service. The following day she received an email from the Claimant's solicitors indicating that judgment in default had already been entered.
2020.
2020
the UK Government put the country into 'lockdown' because of the COVID-19 pandemic. On that day the Prime Minister said that people were going to be required to stay at home and work at home. Emergency legislation (Coronavirus Act
2020)
was passed by the House of Commons without a vote that same day, and became law on 25 March
2020.
There followed a raft of emergency secondary legislation which required all but essential businesses to close and severely restricted the ability of people to go to work and to travel. All but essential workers were required, by law, to stay at home. There were only limited exceptions, such as for exercise and the purchase of essential items. It was a criminal offence to be outside if an exception did not apply. Social distancing of 2m had to be observed, apart from in respect of people living in the same household.
2020).
The history of this crisis has yet to be written, but its effects have been all too palpable for every woman, child and man in the UK, and in many other countries too.
2020
in accordance with the lockdown, with staff working from home after that. She also worked from home and she says that she assumes the Claimant's solicitor did also. She says that a 'skeleton staff' are working at the Council's offices, but they are not familiar with court proceedings. She says that as far as she is aware the relevant legal team within the Council's legal services department has not received the papers which were sent by Mr McConville.
The CPR
"(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly."
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence."
The parties' submissions
2020,
namely, serve proceedings by post. He also relied on the Council's failure to reply to correspondence before the lockdown and said that in light of that unexplained failure I should be sceptical before accepting that the lockdown was the reason for the Council not filing an Acknowledgement of Service in time, as opposed to general dilatoriness on its part.
Discussion
The test to be applied
"38. A question arose at the hearing of the appeal as to the extent to which the principles laid down in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 applied to applications to set aside a default judgement. Since the hearing this court has given judgment in Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] 1 WLR 3926 and the parties have made written submissions on it. Neither case was concerned with applications to set aside a judgment.
39. In essence [the defendant] submits that the Mitchell/Denton principles do not apply to an application to set aside a default judgment. The majority in Denton considered that the Mitchell decision was correct to attribute a particular importance to the factors listed at CPR r 3.9(1)(a) (the need for litigation to be conducted efficiently and at proportionate cost) and (b) (the need to enforce compliance with rules, practice directions and orders) because the Civil Procedure Rule Committee had rejected a recommendation in the Review of Civil Litigation Costs final report that CPR r 3.9(1) should be reworded so that rule 3.9(1)(b) read the interests of justice in the particular case. But the final report did not propose any amendment to CPR r 13.3 so that the reasoning of the majority in Denton does not apply to it. There is thus, it is submitted, no reason to conclude that the Mitchell/Denton principles apply to an application under CPR r 13.3 or that promptness under CPR r 13.3 should be regarded as anything more than a factor. I disagree.
40. In my judgment the matter stands thus. CPR r 13.3 requires an applicant to show that he has real prospects of a successful defence or some other good reason to set the judgment aside. If he does, the courts discretion is to be exercised in the light of all the circumstances and the overriding objective. The court must have regard to all the factors it considers relevant of which promptness is both a mandatory and an important consideration. Since the overriding objective of the Rules is to enable the court to deal with cases justly and at proportionate cost, and since under the new CPR r 1.1(2)(f) the latter includes enforcing compliance with rules, practice directions and orders, the considerations set out in CPR r 3.9 are to be taken into account: see Hussein v Birmingham City Council [2005] EWCA Civ 1570 per Chadwick LJ at para 30; Mid-East Sales v United Engineering and Trading Co (PVT) Ltd [2014] 2 All ER (Comm) 623, para 85. So also is the approach to CPR r 3.9 in Mitchell/Denton. The fact that the courts judgment in Denton was reinforced by the fact that CPR r 3.9 was not reworded in the manner proposed by Jackson LJ does not detract from the relevance of CPR r 3.9, and what was said about it in Denton, to applications under CPR Pt 13.
41. Denton makes clear that any application for relief against sanctions involves considering (i) the seriousness and significance of the default (ii) the reason for it and (iii) all the circumstances of the case. At the third stage factors (a) and (b) in CPR r 3.9 are of particular, but not paramount, importance."
Application of the test
"4.2 The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims.
4.3 Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim."
"… proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person's death, and 'personal injuries' includes any disease and any impairment of a person's physical or mental condition"
2020
was signed by the same person and made a similar admission. These were not admissions the Claimant had suffered any loss. Moreover, there is no evidence that this person had the authority to admit the claim on behalf of the Council (which, at that stage, did not even exist), nor is there even any evidence that she is legally qualified. Ms McDougall's evidence makes clear that the Council intends to resist the claim on the basis she indicates.
2020
onwards the country was grinding to a halt and every employer and business in the UK - and indeed across the world - was suddenly having to develop new ways of working and to find ways of coping with employees not being able to travel into work. There were myriad problems and challenges to be faced, including, for example, establishing technological links and putting in place new systems of working. Parents had to worry about children no longer being able to go to school and all the associated child care issues related to that. Emergency plans were having to be implemented and rapid adjustments made across all sectors of the economy.
2020
(some five weeks or so before lockdown) that service had to be by post, and so that is what he did. The world shifted on its axis on 23 March
2020 and it was incumbent on him as a responsible solicitor and an officer of the court to contact the Council to acknowledge that the situation had changed, and to discuss how proceedings could best and most effectively be served. In her witness statement Ms McDougall accused Mr McConville of 'sharp practice'. I do not find that he unscrupulously took advantage of the situation, but I do find he exercised poor judgement. A moment's thought on his part would have shown that it was not fair or reasonable for him 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.
"4. In so far as compatible with the proper administration of justice, the court will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions."