A ROUND UP OF RECENT COVID-19 CASES

The last few weeks has seen a steady output of judgments arising from various challenges to the lockdown. These challenges are likely to become more common as we proceed to Levels 1 and 2.

The courts have recently had to confront a range of challenges to the Government’s COVID-19 lockdown measures, centred on whether the restrictions on movement required as part of Level 4 and Level 3 is lawful. The courts have, predictably, declined to enter that debate, with the Court of Appeal expressly reserving the question for another day.

As lockdown measures begin to wind down and litigants (and courts) have more time to consider the legal implications, it is likely we will see more challenges to the Government’s approach — and perhaps challenges that will seriously threaten the legality of the Government’s actions.

Two almost identical challenges were brought by the (for now) anonymous “A” and “B” ([2020 NZHC 796; [2020] NZHC 814; and [2020] NZCA 144), who sued the Prime Minister and the Director of Health for a writ of “habeus corpus”. A sued on behalf of his family, and B sued on behalf of his fellow “bubble members” and the wider New Zealand public — hoping to end the lockdown for all of them. Habeus corpus is an old English suit that requires the Crown to prove the legal reason why someone is “detained” — which, the courts unanimously emphasised, means something akin to imprisonment, not restrictions on movement.

The Court of Appeal, hearing both appeals simultaneously, noted that A and B were both able to go for walks and go to the supermarket. This meant that they were not “detained”: a restriction on movement is not the same as a restriction on liberty. The Court of Appeal stopped there however, and (unlike the High Court) refused to consider the lawfulness of the lockdown. It referred to comments from two academics and a member of the Epidemic Response Committee that queried the lawfulness of the lockdown, but left those issues for a judicial review down the line.

A similar suit to A and B’s claims was brought shortly before Level 4 went into effect by a Mr Prescott, who proclaimed he would be locked inside his immobile motor home (which would itself be locked inside a storage yard) if Level 4 was implemented ([2020] NZHC 653). Mr Prescott’s claim was also an application for habeus corpus and was swiftly rejected by the Judge; not only was Mr Prescott not detained, but any hardship he experienced as a result of Level 4 was irrelevant and “inevitable”. 

In contrast, Christiansen ([2020] NZHC 887) was a focused judicial review application by the applicant for permission to leave his bubble to see his dying father, permission having been refused by the Ministry of Health. The Court reasoned that the Ministry had not properly (or compassionately) assessed the situation and had “blindly” followed a policy that was not the law. Given the pressing circumstances, the Judge simply gave permission for Mr Christiansen to leave his bubble and attend to his father.

COVID litigation going forward

The Court of Appeal has left the door open for a challenge to the lawfulness of the lockdown, and more challenges are likely:

• Good litigation takes time: courts (and lawyers) do better when they have time to consider the legal issues in detail. The Court of Appeal’s rejection of A and B’s claims turned in part on the need to have more time to decide them.
• All litigation is context sensitive: the Court of Appeal went out of its way in A and B’s case to highlight the change from Level 4 (when their cases were heard in the High Court) to Level 3 (when the appeal was heard). The change, the Court said, had to be reflected in its analysis, lest its decision become moot.
• Policy is not discretion: as Christiansen shows, courts usually expect government agencies to exercise any discretion they have based on the facts of particular situations. But this is hard for agencies to do when they are (necessarily) developing policies on the fly to deal with the pandemic.
• Policy is not law: the fact that a policy makes sense or is a good faith attempt to ensure the best outcome for society does not mean a judge will uphold it. If the decision based on the policy (or the policy itself) lacks a legal basis then it will be ruled unlawful, as Christiansen illustrates.
• Courts insist on the law being followed: the Court of Appeal’s refusal to rule on the lawfulness of the lockdown (in contrast to the High Court) reflects a deeper belief in the judiciary that the law has to be followed. If the lockdown is ultimately lacking a solid legal basis, the Court will say so — in the right case.
• A sympathetic case is a winning case: Christiansen is legally unorthodox — judges rarely, if ever, substitute his or her decision for that of the decision maker, especially on an application for interim relief. The Judge understandably felt sympathetic to the applicant’s case. But the court in Prescott had no such sympathy for an applicant who could (in the court’s view) have easily left his motor home. With relief for unlawful decisions ultimately discretionary, a judge’s sympathy for the plaintiff’s case can have as much, and sometimes more, significance than the legal arguments at stake.

All of this means that as litigants have more time to reflect in Level 1 and Level 2, questions will inevitably be asked about some of the decisions the Government has been making. When those decisions have been made in a rush, they inevitably become harder for the Crown to defend — especially with the benefit of hindsight. Add a sympathetic plaintiff or an especially arbitrary decision by an official, and all the hallmarks of a seriously arguable case start to emerge.