Although some workplaces are beginning to open up after several months of lockdown, many businesses’ offices remain closed and staff continue to work almost entirely from their homes. This article briefly examines the impact of this where litigation proceedings need to be served on the defendant but where its business premises are closed due to Covid-19.
The court’s approach
In normal times, if a claimant serves proceedings on the defendant (eg, by posting documents to its business premises) but does not receive a defence in response in due course, the claimant can ask the court to enter a default judgment in its favour. In essence, its claim is then successful without any further involvement of the defendant.But what if the defendant’s business premises have remained closed due to the pandemic, but the claimant servers proceedings there anyway? Recent case law confirms that courts will be against parties attempting to gain a procedural advantage out of Covid-19. They have expressed understanding of the practical issues faced by parties during the pandemic and are aware that procedural rules should not be applied as strictly as usual.Therefore, defendant parties may well be able to apply to the court to set aside default judgments against them if they can show that there is a good Covid-related reason for doing so. As far as service of proceedings is concerned, defendants will likely be successful if they can show that (a) their business premises were closed throughout the pandemic and (b) the claimant party should have been (or was) aware about this and tried to take procedural advantage of the pandemic. If succeeds, the judgment will be set aside and the proceedings will continue. The court will likely order the claimant to pay the costs incurred by the defendant in challenging the default judgment.
Practical implications
To avoid issues, parties should nevertheless try to monitor the address they originally gave for service (most commonly, their business premises). For example, if the office is operating at limited capacity, the business should ensure that at least some staff are alerted about proceedings being potentially served (eg, by post). This is because the outcome of any application to set aside a default judgment will ultimately depend on the circumstances of the case, and there is no guarantee that defendants will always be successful.Alternatively, the defendant may agree with the claimant on an alternative method and/or place of serving proceedings. For instance, the defendant could agree to accept service by email.Overall, litigation is a highly technical and fact-sensitive area of the law, so each situation is likely to be different. If you need additional guidance and support with your litigation (Covid-19 related or otherwise), we are open for business as usual and are happy to advise. Please get in touch with our team at info@barnes-law.co.uk.
