03/06/2020

Reasons to be cheerless, part 3

Gil v London Borough of Camden (2020) EWHC 735 (QB)

This was an application for permission to appeal the dismissal of a s.204 appeal for being out of time. (It was either one or two days out of time, depending). The application was dismissed because a) the original s.204 appeal was either one or two days out of time and b) there had been no application for permission to appeal out of time. But I don’t want to talk about the law involved per se, nor about the substantive issues. Instead I want to suggest that this case involves some very worrying procedural aspects as an approach to hearings under coronavirus, as well as the general state of the civil courts.

Briefly, Ms Gil had brought a s.204 appeal against Camden in May 2016 (recorded as issued on 19 May, Ms G’s case was she had put it in the drop box at Central London on 18 May, but in any event, the 21 day deadline from receipt of the s.202 review was 17 May). Ms G was in person. The appeal was eventually listed to be heard on 2 August 2017. On 1 August, Ms G applied to adjourn. That application was refused at a hearing on the morning of 2 August. Ms G then disappeared (on her own case to A&E), for the appeal hearing in the afternoon. The appeal was struck out as being out of time. Ms G sought to appeal that decision on 15 September 2017 to the High Court, with a request for an extension of time to appeal. She was granted the extension of time to appeal, with directions that the application for permission for appeal be an oral hearing.

That resulted in this judgment.

So, point one. A direction for an oral hearing for permission to appeal in the High Court was not listed until TWO AND A HALF YEARS later. On a homelessness appeal! There is no account of why this delay in the judgment, when every delays by a party is closely analysed. Hearing such appeals in the High Court was supposed to speed things up…

Then we come to the crunch. The hearing was listed for 24 March 2020.

On 11 March 2020, Ms G applied for an adjournment:

on the basis of “incapacity due to an infection in the right middle finger”. That application was refused by Foster J on 17 March 2020. One of the points made by Foster J in her ruling was that “the (undated) photographs show, in one picture, a right hand/arm wearing a brace, in another a left hand/arm wearing one”.

So, the hearing was to go ahead. Then, lockdown.

In the light of the Covid-19 pandemic, I endeavoured to give directions for the hearing on 24 March 2020 to take place remotely in accordance with the Remote Hearings Protocol published on 20 March 2020. Unfortunately the Appellant, who is acting in person, was unable to participate in a Skype call as she told me her laptop had been stolen, and she said she was unable to afford the cost of a hearing by telephone on her mobile phone. However, the Appellant has no problem communicating, or expressing herself, by email. Indeed, she accepted that “the decision to proceed by way of written submissions is better than by telephone, as it does not introduce additional charges to [her] mobile phone bill”.

In these circumstances, I directed the Appellant to write down and email to my clerk everything she wished to say in support of her application by 6pm on Tuesday 24 March 2020. I provided this timescale as the Appellant has had ample time to prepare for this hearing, and there was no reason why she could not write down on 24 March 2020 what she had prepared to say at the hearing itself, if the hearing had been possible by physical attendance in a court room.

I directed the Respondent, the London Borough of Camden, to respond to any such written submissions by 6pm on Wednesday 25 March 2020, and I gave the Appellant the opportunity to reply by 6pm on Thursday 26 March 2020. I then said that I would provide a written ruling.

The judgment doesn’t say when these directions were given, but obviously, they cannot have been before 20 March 2020 at the earliest (a Thursday, with the hearing on the Monday), and more likely 21 March.

Ms G again sought an adjournment, this time on 24 March at 12.43 pm, for the following reasons:

“In the event that the court is minded not to adjourn this hearing to a future date, I will still reluctantly say as follows:

0. To me the decision to proceed by way of written submissions is better than by telephone, as it does not introduce additional charges to my mobile phone bill; however the submission deadline of 4 pm (about 3 hours from now!) does not work for me at all for the following reasons:
1. I am still wearing a brace on my right hand due to my middle finger being affected by paranonychia, and in addition I am using my mobile phone to write you so my output will be slow, difficult and probably full of gramatocal errors.
2. As previously indicated I was robbed on 12 March 2020, of my computer bag containing my laptop, etc. A copy of the police letter with the crime reference number has been forwarded to the court. All data saved in the hard drive of my stolen laptop is now lost to me as the rogue(s) who stole my computer bag, wiped out all the information stored on my one drive account. Therefore I have to try to recover all documents attached to my e-mails, including the said document sent by the Respondent on 17/01/20, and save on my phone storage in order to read them up, which will take me many hours. As already stated, I was so occupied with my husband’s case that I could not read my own case papers. Evidently due to his mental/other health conditions, he cannot assist me on my own case, or can he? No is the answer! In addition I may have to spend many more hours researching on cases including the ones quoted by the Respondent.
3. Following from above, I may draft my further submissions but cannot send them off until I have put them before a qualified solicitor to review and check for any legal errors. Evidently I am the appellant and so must use my best endeavours and every service available to me to ensure my new submissions are legal, relevant and to the point. Due to the current Corona virus pandemic, majority of the CABs are now acting via email, and telephone; and to get a response may take anything from 1-7 days, or more.
4. Accordingly for reasons stated above a more realistic submission deadline for me would be in a week’s time, i.e. 31st March, subject to court approval. Thanks for anticipated favourable consideration.”

The court refused this on the afternoon of 24 March (no time given in the judgment).

“Thank you for Ms Gil’s message dated 12:43, which the Court has considered. The Court refuses Ms Gil’s further request for an adjournment. The hearing has been fixed for a very long time and a request for an adjournment was refused by Foster J on 17 March 2020. The Court will take account of all the points set out in her email in determining her application and, if there is anything further Ms Gil wishes to add to her submissions, then she must send any further points email to the Judge’s clerk … by 6pm today (in accordance with the Order made this morning). Thank you very much.”

Nothing further was submitted by Ms G.

The decision was then made by the court that the s.204 appeal was out of time, by a day, or two, and no application for an extension of time had been made, so permission to appeal was refused.

As I said, I am not commenting on the merits or otherwise of this decision. But I am profoundly concerned at this approach to remote hearings or making decisions on written submissions in the current situation. Granted, this was within a few days of the lock down, when we were all frantically trying to figure out how things might work, but it also illustrates particular problems with ‘remote access’ justice for litigants in person, and particularly those in homelessness and possession cases with difficulties that the courts were (and possibly are) simply not capable of acknowledging.

What Ms G said may or may not have been the case, (although the court had no reason to believe otherwise, and had apparently been sent the crime reference details for the theft of the laptop), but let us be clear what the court considered to be ok:

i) The matter could be determined on written submissions, by a litigant in person homeless applicant as against counsel for the council, and that an oral hearing could simply be abandoned because the litigant in person did not have the available facilities to do a video hearing.
ii) Those written submissions could be prepared on (at best) three days notice to the litigant in person.
iii) Even when told (apparently with a bit of evidence) that the litigant in person had had her laptop stolen and would have to retrieve documents and do written submissions on her phone that day – a task most of us would quail at – the court refused to delay the timescale for submissions.

This was a decision in the very first days of lockdown. But I’m far from convinced that the approaches by courts, or court administration have improved since then.

I will be blunt. If the county courts adopt a similar approach to remote hearings once possession claims restart, then there will be very serious issues for access to justice and there will be many unnecessary evictions. The ‘consultation documents’ from some county courts on restarting possession claims sadly suggest that this route is exactly where they are heading.

This is, I have to say, very far from being OK.

 

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. Jamestown

    Remote justice I’m sure this kind of thing will creep more into our day to day lives as technology capability increases and the ever burden of keeping costs down . Next up artificial intelligence judges!

    Reply

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