When will a judge adjourn a hearing when faced with an application on the basis that a party is suffering from COVID-19?
This was a question recently encountered by Simon Newman on an application under s.366 of the Insolvency Act 1986 requiring the Respondents to deliver up documents in their possession to a Trustee in Bankruptcy.
Three days prior to the hearing the Respondents to this application wrote to the court claiming to have been diagnosed with COVID-19, be self-isolating and seeking that the hearing be adjourned. In the circumstances of the current pandemic the court wrote to the Applicants’ solicitor asking that they agree to an adjournment.
By reply, the Applicants’ Solicitors responded stating that due to the prior history of delay caused by the Respondents, the absence of a formal application or medical evidence, and the previous prejudicial conduct of the Respondents they were not prepared to agree to an adjournment.
The court advised the Respondents that their request was refused but they were at liberty to make a formal application.
At 7am on the day of the hearing an application was duly made.
Having anticipated such a move; the application which set out a detailed explanation of what they were suffering from and what they had been advised by health professionals, but still lacked medical evidence, was carefully examined. A number of inconsistencies were identified with the initial email and other matters raised doubts as to the reliability of the statement. These included different dates of symptoms and commencement of isolation, the notion of a telephone diagnosis having been given, the unavailability of testing for a vulnerable couple on the same day the UK government were striving to reach their target of 100,000 tests a day; and other misleading statements.
The judge heard submissions that despite the current pandemic; the normal requirements of CPR3.1 for determining whether a matter should be adjourned on medical grounds, and the quality of evidence that was needed to support such a conclusion should not be derogated from. On the basis of this, coupled with submissions addressing the inconsistencies between the Respondents’ witness statement and their earlier email, and the prejudice caused to the Trustees’ investigation by the Respondents’ previous conduct and delays, the Judge dismissed the application to adjourn.
The substantive contested hearing proceeded and an Order under s.366 of the Insolvency Act was obtained. The Respondents were required to deliver up a range of documents to the Trustee.
This application offers a valuable lesson for those met by an application to adjourn on the basis that one of the parties is suffering from COVID-19.
There is clear guidance on adjournments on medical grounds pursuant to CPR 3.1 and whilst the courts may be willing to adjourn during the current pandemic on the basis of evidence which may not normally meet the threshold, this should not prevent the respondent to such an application vigorously resisting it. In doing so the value of being up-to-date with the current position as regards COVID-19 testing and treatment, the latest Government guidance, and of properly analysing the cogency of the medical evidence will be paramount.