SENSIBLE COVID PRECAUTIONS TAKEN WHEN IMPLEMENTING A SEARCH ORDER: APPLICANT TAKES A VERY NUANCED APPROACH

The judgment of Mr Justice Fordham in Calor Gas Ltd v Chorley Bottle Gas Ltd & Anor [2020] EWHC 2426 (QB) has some interesting observations about the way in which COVID affects both the way a hearing is held and the way in which a search made under a court order is implemented.

“It is, in my judgment, a virtue that the applicant sought in the design of the proposed order realistically to recognise proportionality considerations arising out of the current Covid-19 circumstances. Also to the claimant’s and its lawyers credit is the design within the provisions of the draft order, and accordingly in the order which I have made, search and other steps to ensure appropriate action so far as safety and distancing and Covid-19 is concerned.”

THE CASE

The claimant made an application for a search order, alleging that the defendants had been wrongfully using its gas cylinders.

THE REMOTE HEARING OF THE APPLICATION

The application, heard on 22 July 2020, was heard remotely.

1. 1. The hearing was in private. I was satisfied that publicity would defeat the object of the hearing. In due course, once the return date has passed, this judgment will be able to be published in the usual way. I was and remain satisfied that the open justice principle has been secured to the extent that it can be and that the nature and extent of derogation from it was fully justified as necessary and proportionate.

Mode of hearing

1. The mode of hearing was a remote hearing by BT conference call, recorded so that the recording would be secured and available for subsequent access should it be needed. A shorthand writer participated in the hearing including its resumption. The decision to conduct the hearing by remote hearing was mine. The claimant’s legal representatives had made clear, to their credit, that they were willing to come to court 37 at the Royal Courts of Justice to appear in open court physically before me. Grateful though I was, and am, I decided that it was necessary and appropriate that the hearing should be a remote hearing. Although we can be said to be in the post-lockdown phase (as things currently stand) in relation to Covid-19, the arrangements remain extant in the courts for remote hearings to be directed where justified as necessary and appropriate. I was anxious that arrangements would be needed to be taken at very short notice to set up a conventional hearing, with modified social distancing arrangements, and including not only the claimant’s representatives but the court staff. As it seemed to me, there was no disadvantage, and several advantages, from proceeding in this case by means of remote hearing. At the start of the hearing I was able to discuss with Mr Peto QC the claimant’s leading counsel whether the mode of hearing was in any way detrimental to his client. He was satisfied, and I was satisfied, that it was not. I also had in mind that this was likely to be, and I reviewed the position when the hearing commenced and I needed to direct on that matter, a private hearing. In open justice terms, there was therefore nothing to be gained from the hearing taking place physically within the court building. The hearing as I explained has been tape-recorded, and it was my intention to give a reasoned ruling which in due course would be published. I was and remain satisfied that it was necessary and appropriate to take steps to minimise risk, and secure practical effectiveness and speed. In all those circumstances, and for those reasons, I am satisfied that the mode of hearing was one which was not only appropriate but necessary.

CHANGES TO THE NATURE OF THE ORDER SOUGHT AND MADE AS A RESULT OF COVID

There were interesting changes made to the search order sought. These were a direct result of Covid.

1. 1. I am told, and I accept, that one of the key features which has led to that narrower formulation relates to the current Covid-19 pandemic and social distancing requirements. Mr Peto QC submits that the claimant ought not to be penalised by reference to the fact that it has not sought further and yet more intrusive orders, for example in relation to searching and seizing of documents but has relied instead on more conventional court orders that documents be preserved and that an affidavit be sworn describing relevant transactions. I accept that submission. It is, in my judgment, a virtue that the applicant sought in the design of the proposed order realistically to recognise proportionality considerations arising out of the current Covid-19 circumstances. Also to the claimant’s and its lawyers credit is the design within the provisions of the draft order, and accordingly in the order which I have made, search and other steps to ensure appropriate action so far as safety and distancing and Covid-19 is concerned. Given that rather unusual feature of this case I will set out here what are called ‘the Covid undertakings’ put before the court in the present case and embodied in the order which I have made. They read as follows:

The Supervising Solicitor will: (i) Not permit any person in the search party to enter the Business Premises or those parts of the Domestic Premises identified in Schedule A without first undergoing a temperature test. (ii) Not permit any person who has a temperature above 38 degrees to enter the Business Premises or those parts of the Domestic Premises identified in Schedule A. (iii) Before allowing any member of the search party to enter the Business Premises or those parts of the Domestic Premises identified in Schedule A, make inquiries as to whether anyone currently on either premises is considered to be clinically vulnerable to COVID-19 or is otherwise shielding during the pandemic. If any such individual is identified at the Domestic Premises, they will be advised to remain in those parts of the Domestic Premises that are not identified in Schedule A during the search. If any such individual is identified at the Business Premises, the Supervising Solicitor must stop the search for at least 2 hours to allow for them to make alternative arrangements and to leave the property, if they wish to do so. (iv) Use best endeavours to comply with the requirements of social distancing, maintaining a distance of 2 metres between any persons on the premises, wherever practicable. (v) Use best endeavours to ensure that every member of the search party wears plastic gloves and facemasks at all times when on the Business Premises and the Domestic Premises. (vi) Ensure that every member of the search party has hand sanitising gel and carries it on his or her person at all times when on the Business Premises and the Domestic Premises, both before, during and after the search. (vii) Bring spare pairs of plastic gloves and facemasks to the Business Premises and the Domestic Premises, and offer said equipment to the Respondent and any other person identified on the Business Premises or Domestic Premises.