Think before you serve – When service by post during lockdown is unreasonable

Melanie Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB)

Howard Cohen of Farrar’s Building recently succeeded before Knowles Julian J. in setting aside judgment in a claim for breach of the Data Protection Act/GDPR, Misuse of Private Information, Breach of Confidence and Interference with Private and Family Life under Article 8 of the European Convention on Human Rights.

Judgment had been entered after proceedings were served by post just 2 days following the commencement of the Covid-19 pandemic lockdown, when the Defendant’s offices were closed (a fact that the Claimant’s Solicitor was aware of) and nobody from the Defendant knew that service had been effected. The Claimant’s Solicitor made no attempt to satisfy himself that service by post was still acceptable (having been told 6 weeks earlier that it was).

Background

The Claimant brought an action for damages after the Defendant allegedly revealed her private data. Proceedings were issued on 4^th December 2019 and the Claimant sought damages for “psychological distress, stress, inconvenience and financial loss.”

On 23^rd January 2020, the Claimant’s Solicitor sent the Defendant a letter before claim by post and email. No response was forthcoming and so a second letter/email was sent on 6^th February 2020. Finally, on 13^th February 2020, the Claimant’s Solicitor telephoned the Defendant’s Legal Services Department and spoke to an unnamed worker who told him that it was not his file but that proceedings could only be served by post. Service by email was not acceptable. The Covid-19 lockdown commenced on 23^rd March 2020. 

Two days later, on 25^th March 2020, the Claimant’s Solicitor served proceedings on the Defendant by post. These were deemed served on 27^th March 2020. Acknowledgment of Service was due by 9^th April 2020 and when none was forthcoming, the Claimant’s Solicitor applied for default judgment on 15^th April 2020. This was granted by Senior Master Fontaine on 17^th April 2020.

Once the Defendant instructed Solicitors on 27^th April 2020, it quickly became apparent that Judgment had been entered. The Defendant therefore applied to set judgment aside. Howard Cohen argued that judgment should be set aside for two reasons.

Limb 1 – Real prospect of successfully defending the claim

Howard submitted that the Defendant had a real prospect of successfully defending the claim. The Claimant had failed to provide evidence that any breach by the Defendant had, in fact, caused her actionable injury or loss – the lack of such evidence meant that causation remained an open question. “Without loss, there is no cause of action.”

Limb 2 – Some other good reason

The Defendant also argued that there was “some other good reason” why Judgment should be set aside, pursuant to CPR 13.3(1)(b). That reason was that proceedings were served by post on the Defendant’s premises when the Claimant’s Solicitor knew these to be closed, and he failed to ascertain whether anyone was there who could deal with the matter at a time of national emergency. He failed to take into account the overriding objective and further, failed to consider the best-practice guidance issued by APIL and FOIL to the effect that firms should communicate with each other and temporarily agree to accept service by email during the Covid-19 pandemic.

In response, the Claimant argued that the Defendant only had itself to blame for service being effected by post, having failed to respond to her Solicitor’s letters dated 23^rd January 2020, 6^th February 2020 and 13^th February 2020. The Defendant itself had advised on 13^th February 2020 that service by post was required, and in any case, by 9^th April 2020, it should have had a system in place to deal with post. If it had had one, then Judgment would never have been entered.

Knowles J. accepted the Defendant’s arguments with enthusiasm. In particular, he noted that:-

“33. Even if I am wrong about my earlier conclusion, I am satisfied that there is a good reason to set aside the default judgment. That reason is the unprecedented national health emergency which was unfolding at precisely the time Mr. McConville posted his documents to the Council. From 23^rd March 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 ways of working. Parents had to worry about children no longer being able to go to school and all the associated childcare issues related to that. Emergency plans were having to be implemented and rapid adjustments made across all sectors of the economy.”

In the circumstances, the Claimant’s Solicitor failed to explain why he thought it appropriate to post documents to the Defendant’s offices “…when he knew or ought to have known they were shut and the Council was highly unlikely to be in a position to respond.” More than that, “Mr. McConville took no steps to ascertain whether the papers had been received and were being processed….The world shifted on its axis on 23^rd 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.” This conduct illustrated poor judgment. “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.”

Moving to the question of whether relief from sanction should be granted, Knowles J accepted that it should, and paid particular attention to para. 4 of CPR PD 51ZA which states, “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.”

Analysis

The author is unaware of any other reported cases dealing with service during the Covid-19 pandemic lockdown or turning on paragraph 4 of PD 51ZA. This case certainly places great importance on the need for parties to show common sense and reasonableness in the manner and timing of service of proceedings. Knowles J felt very strongly that the Claimant’s Solicitor had not acted reasonably in serving proceedings just 2 days after lockdown started without making the slightest effort to ensure that somebody would receive those proceedings. He did not find that to be sharp practice, but was highly critical of such poor judgment. The Defendant’s inability to acknowledge them was entirely due to the emergency situation created by the pandemic.

It is to be hoped that Claimant representatives will pay heed to this decision in order to avoid the criticism (and adverse costs consequences) that befell the Claimant’s Solicitor in this case.

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