A Tale of Two Covids…

9 December, 2021

I have written about Covid-19 being used as a procedural excuse in an earlier article (“My Dog Ate My Homework! Relying on Covid-19 For An Extension Of Time”, 25 April 2020). The pandemic continues to raise such issues, particularly for the opportunistic litigant.

There are two very recent cases from different sides of the Channel, one in litigation and the other arbitration, demonstrating that the English and French courts will have limited sympathy for using Covid-19 as an excuse.

In Day v Womble Bond Dickinson [2021] EWHC 3236 (QB, 3 December 2021), the English High Court considered an application for an extension of time to lodge an application to amend a Particulars of Claim and effectively default judgment which had followed as a result. The application was due in early May 2020, shortly after the full effects of the pandemic had hit. The claimant eventually made the application four months late. He blamed the Covid-19 pandemic’s impact on his law firm. He said that various employees of his solicitor’s firm had been furloughed or made redundant so remaining staff had increased workloads, and effectively this had fallen through the cracks. The Court had “some sympathy with this submission, but only up to a point”. It was, said the Court, the firm’s responsibility to ensure it had adequate remaining staff to do the work, pandemic or no pandemic. If the delay had been a matter of days or even a few weeks in the initial stages of the pandemic, that might have been different (as it was in Stanley v London Borough of Tower Hamlets [2020] EWHC 1622), but it could not excuse a four month delay.

Earlier English cases are consistent with this relatively tough line: in Boxwood Leisure Ltd v Gleeson Construction Services [2021] EWHC 947 (TCC), O’Farrell J held that the pandemic did not excuse a diary error or mistake which was partly caused by remote working. It was the claimant’s solicitors’ responsibility to ensure that deadlines were met.

A similar sentiment can be found across the Channel. In Boralex v InnoVent (judgment dated 30 November 2021), the Paris Court of Appeal refused an application to set aside an ICC award because of how the award was signed given the pandemic restrictions. The tribunal had been unable to meet because of lockdown, so instead of all signing the same copy of the award, the co-arbitrators sent the president of the tribunal a separate signature page which they signed alone. The president signed a third signature page, and the award, along with all three signature pages (which had different dates), was sent to the ICC and onward to the parties. Boralex argued that this made it unclear when the award had been signed so that the integrity of the arbitral process itself was in doubt. One might think this was over-reaching a little, particularly because the date of the award was shown on the first page! Indeed, so found the Paris Court of Appeal, which held that there was no requirement for arbitrators to sign the same signature page or on the same date. There could be no doubt about the date of the award.

As those cases demonstrate, the courts are somewhat hardened to pandemic-related excuses for procedural matters. Save in the clearest of cases, the litigant chancing his arm by relying on Covid-19 is likely to receive short shrift.

Written by Iain Quirk QC.