What is an ‘urgent’ court application during the Covid19 lockdown

Introduction

We are living and practising in unprecedented times. The courts have all but stopped litigants and lawyers from physically attending hearings and the need for social distancing and the self-isolation of judges and staff mean that the court is prioritising “urgent” applications and trials. There is no overarching guidance for all cases in the Courts in London (or other hearing centres) with matters being dealt with on a case-by-case basis. The Chancery Guide, which was drafted in normal times, provides little guidance as to what constitutes “urgency”.

So what does this mean in practice bearing in mind that which was previously “urgent” may not be considered to be such in the current situation? More specifically, on what basis do you assess the importance of your case and if appropriate, seek to persuade the court that your case needs to be dealt with urgently?

Here I consider some general points and then specific areas of law in which further available guidance might help in deciding what is ‘urgent court work’.

Broad Principles

The Collins English definition of “urgent” is something “requiring or compelling speedy action or attention”. That is reflected in the (presently analogous) case law in relation to expedited trials, but with the important caveat that speedy resolution necessarily involves prioritising one case over others.

As Lloyd J said in Dalte Europe Ltd (In Liquidation) v Makki [2004] EWHC 1631 (Ch) at [13]: “Expedition…can only be justified on the basis of real, objectively viewed, urgency of the case, which justifies, first of all, giving preference in the allocation of court time to this case over the other cases in the court’s list…” (emphasis added)

And as Laddie J said in Ifone Ltd v Davies [2005] EWHC 1504 (Ch) at [10]: “In deciding what to do, the court must also bear in mind the needs of other litigants. At the end of the day it is being asked to put one case ahead of all other cases in the list and to give it preferential timetabling treatment” (emphasis added).

Neither the desire for commercial certainty (Eli Lilly & Company v Human Genome Sciences Inc [2012] EWHC 2857 (Pat) at [52]) nor the risk that delay will prejudice enforcement in a general sense (Daltel at [17]) will justify the prioritising of a case. So the core point is that a litigant has to justify the special feature(s) about their case that justifies it being heard before others, rather than being adjourned. Self-induced urgency caused by delay on the part of a litigant or their representative may well not be good enough.

General Categories

On 3rd April 2020, national “Civil Listing Priorities” guidance was issued for County Court work (https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/#civilguidance) which included a list of “Work which must be done”. Categories therein potentially translatable to Court work are:

(1) committals

(2) Freezing Orders

(3) injunctions and return days for ex parte injunctions

(4) enforcement work that does not involve bailiffs, such as third-party debt orders

(5) any applications in cases listed for trial in the next three months

(6) any applications where there is a substantial hearing listed in the next month

(7) trials where parties agree that it is urgent; and

(8) appeals in all these cases.

Injunction applications will still need to be time sensitive. A useful test may to be ask whether, by analogy with ex parte applications, delay until normal court service resumes would “defeat the purpose of the injunction” (National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] 1 WLR 1405).

If you do have court work which you consider to be urgent and you need a solicitor to help you with that, give us a call on 020 8401 7352 or by email to info@solicitorsfirm.com and we will tell you how we are able to assist and what the costs may be. Despite the Covid19 lockdown, our office continues to work normally, albeit remotely to ensure the safety of all staff, clients and to preserve the integrity of the NHS.