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How falling ill with COVID may be a good reason for failure to comply with an unless order: Finvest Holdings Sarl v Lovering [2021] 3 WLUK 579 - Paul Erdunast, Temple Garden Chambers

21/04/21. Where a party contracts COVID and is therefore unable to work, that may be a good reason for the failure to comply with an order - even an unless order. Furthermore, there may be no need to obtain a medical report to prove it so long as there is a detailed account in a witness statement signed with a statement of truth.

Facts

The essentials of this case, so far as is relevant to this article, are that an order was made in “unless” terms for the Second Claimant to provide further information. He did not do so and therefore his case was automatically struck out. He required relief from sanctions. He was successful only once the “all the circumstances of the case” were considered. The reason for the matter getting past the “good reason” stage is that while his COVID was good reason for delay, it was not good reason for the failure to transfer funding to his solicitors for the litigation in circumstances where he had the support of both employees and professional advisors.

Judge’s remarks on COVID as justifying the delay

There was an argument on what the second Claimant need to do in order to demonstrate to the court that he had COVID as he said he did. Was an account in the witness statement enough or did he need to submit a medical report? Here is what HHJ Pelling (sitting as a Deputy High Court Judge) said:

“40. The second issue which is identified occurred in January 2021, when the second claimant says he, himself, contracted Covid. The defendant submits however that the effect of the condition on the second claimant as described would have come to an end by the end of January at the latest and could not have affected the ability of the second claimant to comply with the orders thereafter, particularly where, as here, the second claimant has the support of employees and professional advisors. It is also said on behalf of the defendant that there is no objective evidence available which supports what is asserted.

41. Where one is concerned with an allegation of Covid infection, a court will...

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