Harun Miah v Amir Uddin Ahmed

When a party reports symptoms of Covid-19 and has ordered the PCR test required by contemporary guidance, failure to obtain an additional lateral flow test should not ordinarily count against an adjournment application. A symptomatic person was expected to remain at home pending the PCR result, and a negative lateral flow test would not alter that position.

Where a litigant has engaged with proceedings, has made no previous adjournment application, has no obviously weak case and is represented at the hearing by a non-lawyer, the court should enquire whether remote participation is desired and practicable. Proceeding without that enquiry may fall outside the range of reasonable case-management decisions.

The claimant obtained judgment in the Central London County Court concerning an alleged agreement under which the defendant was to pay £60,000. The defendant appealed after the trial judge refused an adjournment sought shortly before trial because of a change of legal representatives, mental-health concerns and Covid-19 symptoms.

Permission was granted on three grounds: whether the agreement was binding, whether the adjournment application was wrongly refused, and whether the trial judge proceeded on an erroneous basis concerning arbitration. The central issue before the High Court was whether the refusal to adjourn, including the failure to explore remote participation, was within the range of permissible case-management decisions.

1. Appeal allowed on ground 2. The County Court judgment was set aside. The matter was remitted for rehearing before a different judge.

2. The trial judge’s approach to the late change of representatives and the medical evidence concerning mental-health issues was unobjectionable. A litigant cannot change representatives shortly before trial without explanation and then require an adjournment merely to allow new representatives to prepare. The judge was also entitled to conclude that the GP’s letter did not adequately explain how the condition would impair the defendant’s ability to conduct the trial or provide a sufficient prognosis. This conclusion was reached by applying the requirements discussed in Levy v Ellis-Carr [2012] EWHC 63 (Ch).

3. The judge erred in treating the absence of a lateral flow test as a reason to refuse an adjournment based on Covid-19 symptoms. The guidance in force in December 2021 directed symptomatic individuals, including those with coughing and shortness of breath, to obtain a PCR test and remain at home pending the result. Lateral flow tests were directed to asymptomatic individuals. A negative lateral flow test would not have relieved the defendant of the obligation, in the relevant sense, to remain at home.

4. The absence of Covid-19 evidence in the GP’s letter was also of limited significance. A GP could not diagnose Covid-19 other than by directing the patient to take a PCR test and could add little beyond recording the symptoms reported.

5. Although the application formally sought a substantial adjournment, the defendant’s son was not a lawyer. Given the defendant’s continuing engagement, the fact that this was his first adjournment application and the absence of an obviously weak case, the judge should have enquired whether the defendant wished, and was well enough, to participate remotely. Proceeding without that enquiry fell outside the range of responses open to the judge.

6. Because the trial had been conducted with evidence from only one side, the High Court expressed no conclusion on the agreement or arbitration grounds. The claim was remitted for a fresh trial before a different judge.

• High Court (King's Bench Division): appeal allowed on ground 2; the County Court order was set aside and the claim remitted for rehearing before a different judge.
• Central London County Court: HHJ Lethem KC refused an adjournment, proceeded with the trial and granted declaratory relief and judgment for the claimant.