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By Hazel Leeson

Jul 28th, 2020

Pandemic knock-on effects - Understanding from the court in unprecedented times - but don't push it...

Extensions of time were granted for disclosure and preparation of witness statements as a result of delays caused by the COVID-19 pandemic and the consequences of lockdown.

 

HOTEL PORTFOLIO II UK LTD (IN LIQUIDATION) & ANOR v ANDREW JOSEPH RUHAN & ANOR (2020)

 
In this recent High Court Case the court considered an application raised by the defendants for extensions of time for dealing with disclosure and exchange of witness statements.

Directions had been made and the trial had been set for November 2021.The deadline for disclosure was set for 31 January 2020.  In March 2020 the defendants initially sought extensions of time for disclosure to 16 October 2020 and for witness statements by 5 March 2020.  At that stage the time for disclosure was extended to 17 April 2020.

The defendants later submitted the application on the basis that they required a further extension of time due to the COVID-19 pandemic and the subsequent consequences of lockdown.  They submitted that this had been outside their reasonable contemplation in March 2020. One of the defendants also sought an extension of time to prepare witness statements due to difficulties of obtaining documentation from a person living abroad as well having received unexpected disclosure of 13 boxes of additional files for review.


The claimant submitted that the effect of the pandemic and the disruption caused would have been within the defendants' reasonable contemplation in March 2020.


HELD - The court did not accept the claimant’s submission and held that the pandemic and it’s consequences had involved a significant change of circumstances for the parties.  However, the court was dissatisfied with the defendants' progress with regards to disclosure.  Whilst extensions were granted, these were for shorter periods than had been requested.


Disclosure


The first defendant had relied on the fact that he had had to move due to his partner self-isolating.  In addition his IT provider had been unable to install relevant technical services, there had been an impact of COVID-19 on his funding as well as difficulty in accessing hard-copy files.  The court did not accept that the difficulty in accessing his office could provide a good reason for not being able to access his documents. Both offices and the court had had to adapt to a new, remote way of working.   Whilst the pandemic might have caused a delay of three months, the court considered that even assuming work had returned to only 50% normality by June, this should have enabled disclosure to have been completed in August. The court granted an extension of time to 14 September 2020.


Witness statements


The court was concerned that the preparation of witness statements had been allowed to drift and that insufficient thought and effort had gone into working around the consequences of lockdown. The court granted an extension of time to 31 August 2020.

COMMENT 


Clearly the pandemic has had an unprecedented affect in all aspects of life, including litigation.  The difficulties cannot be ignored and delays will have occurred.  The court will not penalise parties unable to comply with directions due to issues outside of their control.  However, do not allow time to drift and ensure proactive handling continues.  Whilst the court system understands the issues in adaption to the new remote working situation, there are still limits to the extent to which the court can tolerate slippage and it must be clearly shown that sufficient effort is maintained to work around the difficulties encountered.

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