Law clarified on injunctions during the Covid-19 pandemic
Litigation Partner Matt Champ was recently involved in what is believed to be the first case seeking an injunction in an adjudication dispute as a direct result of the Covid-19 virus and the difficulties it has caused with the movements of the parties involved and their lawyers.
Matt acted for a client-company that had carried out substantial building works on a residential property. The company ceased trading but the end-client decided to refer the matter to adjudication relating to alleged problems with the works after the Government gave its detailed guidance with which we are all now familiar.
Adjudication involves a surveyor determining the disputes between the parties within 21 days from start to finish. That decision is then enforceable in the courts and extremely difficult to overturn. Having to react to short timescales at any time is clearly a problem when the subject matter is vast and complicated. This is even more so when there is a clear-cut need to find out what has gone on in respect of a company that, whilst extant, was not trading and had no workforce. However, it is not hard to imagine how easily those problems could be magnified when, for example, due to Covid-19, there was much more difficulty than normal in communicating with third parties and it was not therefore possible to adequately deal with all of the issues raised as a result of the practical implications and restrictions that Covid-19 had caused, let alone factoring in the extremely short deadline which overhung the entire process.
The application was heard on an emergency without notice basis by Mrs Justice Jefford in the Technology and Construction Court in the High Court via Skype. Mrs Justice Jefford rejected the application to delay the adjudication until the Covid-19 guidance was lifted and stated:
In any adjudication, issues had to be addressed within a short time scale. The applicant's submission that that situation had been further exacerbated by the health crisis was rejected....
… the parties to an adjudication had no right to be present at a site visit. The adjudicator could therefore conduct the site visit on his own. It was clear that the respondent was likely to be present as it was her property but arrangements could be made for the visit to be recorded or for the applicant to list specific matters for the adjudicator's attention beforehand. Accordingly, the injunction would not be granted and the adjudication should proceed.
In short, whilst the court accepted that there were likely to be difficulties, it was of the view that the difficulties were of the sort that were usually expected or seen in adjudications and, health situation aside, were not so exceptional that the court should interfere.
Matt Champ is continuing to serve clients during the coronavirus crisis and can be contacted by email or on direct dial 01843 269302.