Judge wrong to refuse to adjourn a trial when a party displayed COVID-19 symptoms (Miah v Ahmed)

20 Jul 2023

Dispute Resolution analysis: A decision by a trial judge during the COVID-19 pandemic that a trial should proceed in the absence of a party who gave evidence that he was suffering symptoms of COVID has been overturned on appeal.

Miah v Ahmed [2023] EWHC 1742 (KB)

What are the practical implications of this case?

This is an appeal against a case management decision made at a peak period of the COVID-19 pandemic. The trial judge refused an adjournment and permitted a trial to proceed in the absence of a party whose evidence was that he was displaying symptoms of COVID-19 at the time. Applications to adjourn trials on the grounds of ill-health of a party have always been common and there is an established body of case law in relation to how such applications are to be considered. The COVID-19 pandemic significantly increased the number of such applications and this case shows the importance in considering those applications in light of the specific circumstances of the pandemic. The apparent ‘convenience’ of the party’s symptoms, arising coincident with a late change of legal representation should have been considered in light of the fact that over 300,000 cases of COVID-19 had been reported in the previous week. This judgment further emphasises the availability of remote hearings which could have been used to keep trials listed notwithstanding the possibility of COVID-19 infection. The failure to offer that option to the part proved to be fatal to the trial judge’s decision in this case.

What was the background?

On 6 December 2021, a trial was due to begin at the County Court at Central London in relation to a dispute about a settlement agreement between Mr Ahmed and Mr Miah. Shortly before the trial, Mr Miah’s direct access counsel was disinstructed. On 1 December 2021, Mr Ahmed’s solicitor received a call from a solicitor newly instructed by Mr Miah. During that call, the solicitor requested agreement for the adjournment of the trial on the basis that the solicitor required additional time to prepare and that Mr Miah was displaying symptoms of COVID-19. Mr Miah was in the process of trying to secure a PCR test, however the request for an adjournment was refused. This necessitated an application for adjournment. This application was refused on the papers and the trial went ahead. Mr Miah’s son appeared and renewed the application orally for an adjournment. That was again refused and the trial proceeded with the trial judge finding in favour of Mr Ahmed. Mr Miah was granted permission to appeal on 3 grounds. (1) (1) the judge was wrong to hold that the settlement agreement at issue was binding; (2) the judge applied the wrong test in refusing to adjourn and/or was wrong not to adjourn for a short period to enable a remote hearing to take place; (3) the judge was wrong to proceed on the basis that there was an arbitration agreement or that it was a matter of semantics whether there was such an agreement.

What did the court decide?

On appeal, the second ground of appeal was considered first and it was common ground that if the appeal was allowed on that basis, there would need to be a new trial. Mr Justice Chamberlain concluded that the trial judge had been wrong not to adjourn the trial. The judge erred in concluding that Mr Miah should have taken a lateral flow test to confirm his symptoms rather than waiting for a PCR test. The Government guidance at the time was that symptomatic persons should take a PCR test and lateral flow tests were to be used at that time for asymptomatic persons. The lack of a COVID-19 diagnosis in the GP letter was given too much weight. There was no means at the time by which a GP could diagnose COVID-19. As Mr Miah had engaged throughout with the process, had not applied for an adjournment before and did not have an obviously weak case, the judge should have made arrangements to enquire whether Mr Miah wished (and was well enough) to participate remotely. A new trial was ordered with a direction that it should be heard by a different judge.

Case details

  • Court: High Court of Justice, King’s Bench Division
  • Judge: Mr Justice Chamberlain
  • Date of judgment: 11 July 2023

Article by Phillip Patterson – first published by LexisNexis


Phillip Patterson

Call: 2008


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