Lateral flow test: Judge was wrong to place reliance on one
A judge should have adjourned a trial after the defendant reported symptoms of Covid, the High Court has ruled.
Mr Justice Chamberlain said His Honour Judge Lethem KC was wrong to criticise Harun Miah for failing to take a lateral flow test (LFT) and should have asked if he could take part in a remote hearing.
“Given that, as the judge found, Mr Miah had engaged throughout with the process, had not applied for an adjournment before and did not have an obviously weak case, the judge should in my view have made arrangements to enquire whether Mr Miah wished (and was well enough) to participate remotely.
“I bear in mind that this was a case management decision. Nonetheless, the decision to proceed without enquiring into these matters in my view fell outside the range of responses open to him.”
Miah v Ahmed [2023] EWHC 1742 (KB) concerned a dispute over the validity of an agreement between Mr Miah and the claimant, Amir Uddin Ahmed.
Chamberlain J said the trial, at Central London County Court, had been listed “for some time” for Monday 6 December 2021.
Shortly before, Mr Miah sacked his direct access barrister and replaced him with the law firm Exons.
On Wednesday 1 December, Mr Ahmed’s solicitor received a call from Exons saying they would seek an adjournment of the trial because of lack of time to prepare and because Mr Miah “had symptoms of Covid-19”.
Mr Ahmed’s solicitor opposed the adjournment, saying he was surprised Mr Miah had not booked a PCR test, describing his claim to have Covid-19 as “unbelievable”.
Mr Miah’s solicitor replied the following day to say that his client had booked a PCR test. Mr Ahmed’s solicitor restated his opposition to an adjournment and the trial went ahead.
Mr Miah’s son, who was allowed to make submissions at the trial, said his father was coughing and short of breath, and had sent his PCR sample off on Thursday 2 December but the result had not come back. The son said it would be “irresponsible and reckless” for the father to attend court.
HHJ Lethem described Mr Miah’s Covid symptoms as “to say the least, convenient as far as the defendant is concerned”.
The judge said he could have obtained an LFT over the counter, as many people did. Though not conclusive, a positive test could have provided “considerable support” for a self-diagnosis of Covid.
Mr Miah had a GP’s letter, which mentioned mental health issues, but not his symptoms of Covid-19 and HHJ Lethem was “struck by the paucity of the evidence”, particularly in relation to Covid. But he did not make a finding that the symptoms were not genuine.
He therefore focused on the mental health issues and found the GP’s letter wanting. He refused the adjournment and granted the declaratory relief sought by Mr Ahmed.
Chamberlain J said that if the application had been pursued purely because of the late change of lawyers and mental health issues, HHJ Lethem’s analysis would have been “exemplary”.
The judge “fell into error” by not adjourning on the basis that Mr Miah “could and should have taken an LFT to show that he actually had Covid-19”.
Government guidance in December 2021 was that people with Covid symptoms should take a PCR test and stay at home until they got the result, even if they had taken an LFT – which were in any case for asymptomatic individuals – and it was negative.
Chamberlain J said: “Although the GP’s letter did not support the diagnosis of Covid-19, it could not be expected to do so. GPs had no way of diagnosing Covid-19 except by asking patients to take a PCR test.
“In those circumstances, the absence of reference to Covid-19 symptoms had less significance than the judge appears to have thought.”
HHJ Lethem should “have made arrangements to enquire whether Mr Miah wished (and was well enough) to participate remotely”.
Chamberlain J ruled that the trial should be reheard before a different judge.
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