High Court decision in GFH Capital Limited v Haigh and others – a stricter approach adopted by the Courts in relation to COVID-19

 

The recent High Court decision in GFH Capital Limited v Haigh and others, considered a Defendant’s application to set aside two Orders made on 3 February 2021 and 11 February 2021. These orders were made following a remote hearing that took place on 29 January 2021.

Case summary

The Defendant applying to set aside the Orders had been in contact with the court and submitted documents to the court up to the morning of the hearing, by email. In his communications with the court, he referred to issues with his WiFi, problems with his landline, having no mobile signal and being required to self-isolate due to Covid reasons.

The approach taken by the Judge at the hearing on 29 January was that she was satisfied she could proceed to hear the matter in the Defendant’s absence, as he had been informed, he could attend by telephone, her clerk had rung him several times on his mobile and sent a text.

An application to set aside the two Orders was made by the Defendant. The Defendant in his supporting witness statement said that after sending his email to the court on the morning of the hearing, his landline and phone had cut out and there was no mobile signal in the village he resided. On this basis, the Defendant stated he had not received emails or voicemails from the Judge’s clerk.

The Court’s Response to the Defendant

In considering whether to set aside the two Orders, the High Court found it implausible that there had been a total failure of communications and there was nothing the Defendant could have done to join the remote hearing.

The Court found that the Defendant had failed to put forward any documentary evidence regarding there being no mobile reception and landline problems on the day of the hearing. The Court also held that he could have arranged to go somewhere else with signal or wi-fi to take part in the hearing.

Referring to the Defendant being told to self-isolate, the High Court found that under the Coronavirus Restrictions (Self Isolation) Regulations that were in force at the time of the hearing, he could have left his home to participate in legal proceedings. It was also noted by the Court that from the documents the Defendant submitted on 27 and 28 January, that he was well enough to make sophisticated written submissions.

On this basis, the Defendant’s application to set aside the order was dismissed.

In Summary – What are the implications of this case?

Given this recent case and others, the Courts appear to be moving back to a “business as usual” approach. This shift appears to be based on the Courts being aware that over a year has passed since the start of the pandemic in March 2020 and legal professionals have had ample opportunity to get to grips with a greater use of technology (such as Cloud Video Platform, Microsoft Teams, Zoom and telephone) to conduct hearings remotely.


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