gunnercooke partner, Khaled Moyeed secures High Court appeal success overturning a decision relating to the pandemic

July 18, 2023
Khaled Moyeed


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gunnercooke partner, Khaled Moyeed wins a High Court appeal for the Appellant overturning the trial judge’s decision to refuse adjournment of the trial when the Appellant was suffering from Covid symptoms in December 2021. This is an important decision shedding light on how courts were dealing with hearings during the pandemic.

At the High Court, Mr Justice Chamberlain carefully scrutinised the trial judge’s decision taken during the pandemic. While commending the trial judge’s analysis, Mr Justice Chamberlain departed from it on a very small but important point. He held that the trial judge had erred in holding that a lateral flow test would have sufficed whereas the guidelines at the time required that a PCR test should be carried out which is what the Appellant had done.

The case centred around a claim brought by the Claimant (Respondent) against the Defendant (Appellant), seeking a declaration of the binding nature of an agreement dated 27 November 2018 under which the Appellant was required to pay a sum of money to the Respondent. The trial was set to begin on 6 December 2021.

The Appellant applied for adjournment because he needed more time as he had just instructed Khaled Moyeed two working days before the hearing. He was also struggling with depression and anxiety which were compounded by Covid symptoms requiring him to self-isolate.  

The Appellant contested the Respondent’s suggestion that his Covid symptoms were not genuine.  The Appellant provided evidence of having booked a PCR test, with results expected within two days, as well as the requirement to self-isolate.

The Appellant’s son attended the hearing to make submissions on his father’s adjournment application. He confirmed that the Appellant was suffering from shortness of breath with persistent coughing. The trial judge, HHJ Lethem KC also considered the Respondent’s submissions that the Appellant could have done a lateral flow test with an instant result.

The trial judge refused the adjournment application and proceeded with the hearing without the Appellant. His refusal was not because he did not believe that the Appellant did not have Covid symptoms. He accepted the Respondent’s arguments that the Appellant should have taken a lateral flow test to confirm his Covid status.

At an oral permission to appeal hearing in January 2023, Mrs Justice Steyn granted the Appellant permission to appeal on three grounds, namely:

  1. The judge was wrong to hold that the 2018 agreement was binding;
  1. 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; and
  1. The judge was wrong to proceed on the basis that there was an arbitration agreement or whether it was a matter of semantics whether there was such an agreement.

During the appeal hearing on 4 July 2023, Mr Justice Chamberlain first considered whether the trial judge’s refusal to adjourn the hearing was wrong. He was persuaded by the Appellant’s argument based on the government guidelines in December 2021 that individuals showing symptoms such as shortness of breath and coughing, as experienced by the Appellant, should take a PCR test and self-isolate and that the lateral flow test was for those who were asymptomatic.

Mr Justice Chamberlain also noted that the judge failed to inquire about a remote hearing. He ordered a retrial. Grounds one and three, which raised separate matters, were not addressed, as they would be determined during the retrial.

Welcoming the appeal, Khaled Moyeed said, “This is an enormous relief for my client who contacted me just two days before the trial. He was suffering from Covid symptoms meaning he had to self-isolate. It was not possible for me to represent him at the trial as there was not enough time to read into the case and prepare properly. He could not possibly defend himself at an in-person hearing and the judgment ultimately went against him.

Justice has been served after a 19-month wait with the High Court allowing my client’s appeal. He will now have an opportunity to defend himself at the retrial.”

The full judgement can be read here.

To contact Khaled, or read more about his practice, please click here.

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