Is more co-operation the new normal?

What keeps you as a lawyer awake at night during the coronavirus pandemic? The list is likely to be very long and the fear of making a mistake will be close to the top. Help may come from some unexpected quarters such as the Courts.

At first glance a case about setting aside a default judgment may not appear to be recommended reading to help you about avoiding claims.  This is though a practical and re-assuring solution to a problem we have seen on several occasions already.

The facts in Melanie Stanley v Tower Hamlets LBC [2020] EWHC 1622 were these.  The Claimant sought damages for psychological distress arising from an admitted data protection breach by the local authority (LA). She sent a letter of claim on 23 January 2020 and received no response. She wrote on 6 February, pointing out to the LA that it was in breach of the pre-action protocol, which required a response within 14 days. Again, there was no reply. On 13 February, during a telephone conversation between the Claimant's solicitor and the LA's legal department, the latter indicated that service of proceedings had to be by post. The Claimant's solicitors posted the relevant documents on 25 March. The deemed date of service was 27 March and the acknowledgement of service was due by 9 April. As it was not filed the Claimant applied for judgment in default, which was granted on 17 April. As we know, "lockdown" occurred on 23 March because of the coronavirus pandemic.

The LA said that it did not receive the papers because it closed its offices on 23 March in accordance with the lockdown, and staff worked from home. It maintained that it was unreasonable for the Claimant's solicitors to have effected service by post when they knew that its offices were closed and that the judgment should be set aside because it had a real prospect of successfully defending the claim and/or there was some other good reason.

The Court agreed with the LA.  Although the LA had admitted breach, loss had to be established and on the evidence the LA had a real prospect of defending the claim. 

If that had not been made out, the Court considered that there was another good reason. The coronavirus pandemic was generally recognised to be the greatest peacetime emergency that the world had ever faced. From 23 March 2020, suddenly we had to develop new ways of working. There were myriad problems and challenges to be faced. It was not good enough for the Claimant's solicitor to explain himself by reference to what he was told regarding service five weeks before lockdown. As a responsible solicitor and an officer of the Court he should have contacted the LA to acknowledge that the situation had changed and to discuss how proceedings could most effectively be served.

HMCTS have relaxed some rules such as PD51ZA which allows parties to agree to extend time up to 56 days rather than 28 days without seeking a Court Order.  As virtually all lawyers are working from home, a practical solution on service of documents is for parties to agree service by email on a general and reciprocal basis rather than requiring prior written agreement each time. 

These practical solutions will reduce the risk of claims arising from service of documents and missed deadlines.  Now more than ever the Courts will expect lawyers as officers of the Court to act reasonably and co-operate in order to further the over-riding objective. This is the new normal.