I WANT AN ADJOURNMENT BECAUSE I’M ILL: AN APPLICATION NOT GUARANTEED BE SUCCESSFUL

The issue of adjournments because of ill-health is one of the most common search terms that leads to this blog. (I am not certain whether to be surprised  at this or not). For those searching today the relevant principles are summarised in the judgment of  David Stone (sitting as a Deputy High Court Judge) in Mulalley and Company Ltd v Regent Building Services Ltd & Anor [2017] EWHC 2962 (Ch).

 

 

“Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge”

THE CLAIM

The applicant was seeking an injunction preventing the presentation of a winding up petition on the grounds that the debts were disputed.   The respondent (an individual and a company were initially instructed by solicitors and counsel).  The legal representatives ceased acting and the application was listed for a hearing. The respondents did not appear but sought an adjournment on the grounds that off ill health.

THE JUDGMENT ON THE APPLICATION FOR AN ADJOURNMENT

    1. Mulalley’s application to this Court for injunctions was initially listed for hearing on 29 June 2017 before Barling J. At that hearing, Regent and Mr White were represented by counsel and solicitors – counsel’s skeleton argument records that she appeared for both Respondents. It has since become apparent that Mr White denies that he was ever represented by counsel or solicitors, and instead claims always to have represented himself. He accepts that Regent was previously represented.
    2. At the hearing on 29 June 2017, on behalf of Regent and on the face of the documents on behalf of Mr White, counsel sought an adjournment of 14 days on the basis of Mr White’s ill health. Mr White has inoperable cancer, and at the time was undergoing chemotherapy. Mr White gave undertakings on behalf of both Regent and himself not to take any steps to present a winding up petition against Mulalley until after the disposal of the application. An order was made to that effect. Counsel for Regent also sought to have Mr White removed from the proceedings: no order was made to that effect.
    3. The matter was then listed for hearing floating on 15-17 November 2017.
    4. The records of Companies House record that on 8 September 2017, Mr White became a director of Regent, as well as becoming its secretary. The other directors, Emma Louise White and Victoria Kathleen White, all resigned on that day.
    5. Having discovered that Mr White had disinstructed his and/or Regent’s solicitors, Mr Coveney of Mulalley’s solicitors corresponded directly with Mr White. This included a telephone conversation on 31 October 2017 in which Mr Coveney reminded Mr White that the matter was listed for hearing in a window 15-17 November 2017.
    6. Mulalley’s solicitors wrote to Mr White on 2 November 2017, noting the adjournment of the 29 June hearing and stating “The matter is now listed in a three day window from 15 November 2017”. That letter was sent by email, to which Mr White responded that same day with “Your correspondence is received and noted”.
    7. On 14 and 15 November 2017 Mr Coveney and Mr White exchanged a number of emails – of the email chain I have seen, nine were sent to Mr Coveney on those two days from contact@regentbuildingservices.co.uk and are variously signed “Regent Building Services Limited and Christopher White”, “For Regent Building Services Limited”, “Chris White” or are unsigned.
    8. Late on 15 November 2017, the Court received by email a letter on Regent Building Services Limited headed paper which I set out here in full:
    9. Date: 16th November 2017.
“We respectfully request that the hearing of the application for injunction be adjourned for the following reasons:
1. We only had notification of the hearing from the Applicant under email on th16th [sic] November 2017, timed at 13.57, no other documentation or notice had been received prior to this, therefore, this has not allowed us sufficient time to arrange legal representation, given that our previous legal advisors are no longer on the record, this notice was sent to the court on 1st September 2017.
2. Christopher White’s medical condition does not recommend that he attend any stressful or strenuous meetings, see attached previous witness statement and letter from his Doctors. We would also request on the behalf of Mr Christopher White that he be removed from the record as his dealings in this matter are as a representative only of Regent Building Services Limited and due to his current terminal medical condition, see paragraph 8 of Mr White’s witness statement dated 28th June 2017.
3. I respectfully apologise to the court for not being able to attend the hearing in Person, no disrespect is intended through my non-attendance but I will be unable to do so for reasons of my poor health, chemotherapy treatment and my general poor mobility.
4. We would ask that costs be reserved in the matter.
We, trust the court will take or [sic] representations in all good faith and confirm that on our behalf no action will be pursued against the Applicant [sic] in respect of the statutory demand.”
    1. The email also attached Mr White’s earlier witness statement of 28 June 2017, which attaches a report dated 7 March 2017 from the Cancer Division and Haematology Directorate, noting Mr White’s diagnosis in 2014, and his treatment up to 2 March 2017.
    2. Mr White’s email also attached a letter from Newport Surgery dated 29 September 2017 which reads:
“I can confirm that Mr White is under the care of this practice. Mr White is under considerable stress due to metastatic bowel cancer. He is under going treatment at Addenbrookes Hospital which is lengthy. It would be detrimental to Mr White’s health to travel or to attend any stressful meetings at this time.”
    1. Mr White’s email and its attachments were also sent to Mulalley’s representatives.
Application for an Adjournment
    1. Although the letter by email requesting an adjournment does not express itself to be from both Regent and Mr White, I have treated it as an application for an adjournment from both Respondents.
    2. The application for an adjournment is put on two grounds:
a) Very late notice of the hearing; and

b) Mr White’s medical incapacity.

I deal with each in turn.
    1. In relation to inadequate notice, I do not accept that Regent/Mr White had inadequate notice of the hearing. No evidence was adduced as to whether, and if so, when, Regent’s/Mr White’s then solicitors informed it/him of the new listing window. However, in my judgment, Mr White at least knew that the hearing of 29 June 2017 had been adjourned, as he had requested, and he should therefore have been on the lookout for a new hearing date. At the latest, he was orally made aware of the hearing window by Mulalley’s solicitors’ call of 31 October 2017 and he was made aware in writing by Mulalley’s solicitors’ letter by email of 2 November 2017, to which he responded “Your correspondence is received and noted”. I therefore place no reliance on Mr White’s claim in his letter of 15 November 2017 that he only received notification of the proceedings the day before.
    2. Turning to the medical grounds, the principles to be applied to an application for adjournment are helpfully set out by Warby J in Decker v Hopcraft[2015] EWHC 1170 (QB), which, in light of Regent’s/Mr White’s not being represented, I set out in full:
“21. The decision whether to adjourn a hearing, and the decision whether to proceed with a hearing in the absence of a party, are both case management decisions. The court is required to exercise discretion, in accordance with the overriding objective, in the light of the particular circumstances of the individual case. The authorities provide valuable guidance, however.

22. A court faced with an application to adjourn on medical grounds made for the first time by a litigant in person should be hesitant to refuse the application (Fox v Graham Group Ltd, The Times, 3 August 2001 per Neuberger J, as he then was). This, however, is subject to a number of qualifications. I focus on those which seem to be of particular relevance in the present case.

23. First, the decision is always one for the court to make, and not one that can be forced upon it. As Norris J observed in Levy v Ellis-Carr [2012] EWHC 63 (Ch) at [32].

“Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge.”

24. Secondly, the court must scrutinise carefully the evidence relied on in support of the application. In Levy v Ellis-Carr at [36] Norris J said this of the evidence that is required:

“Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).”

25. Norris J’s approach in Levy v Ellis-Carr was expressly approved by Lewison LJ in Forrester Ketley v Brent [2012] EWCA Civ 324[26], upholding a decision of Morgan J to dismiss an application to adjourn on medical grounds. It was followed by Vos J (as he then was) in refusing an application to adjourn the trial in Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 734 (Ch) [49].

26. In the context of what amounts to proper medical evidence it is pertinent to note two points made by Vos J in the Bank of Ireland case. At [19], referring to a GP’s letter running to some 11 lines which confirmed that the defendant had been signed off work for three weeks, he said this: “It is important to note that a person’s inability to work at a particular job is not necessarily an indication of his inability to attend court to deal with legal proceedings. It may be but it may also not be.” At [58] Vos J indicated that he took into account the contents of the defendant’s litigation correspondence, observing that he “has been communicating with the court and with the claimants over a lengthy period in the most coherent fashion. He is plainly perfectly capable of expressing his point of view, taking decisions and advancing his case”.

27. The third main qualification to Neuberger J’s observations in Fox v Graham is one that is implicit, if not explicit in what Norris J said in Levy v Ellis-Carr: the question of whether the litigant can or cannot participate in the hearing effectively does not always have a straightforward yes or no answer. There may be reasonable accommodations that can be made to enable effective participation. The court is familiar with the need to take this approach, in particular with vulnerable witnesses in criminal cases. A similar approach may enable a litigant in poor health to participate adequately in civil litigation. But the court needs evidence in order to assess whether this can be done or not and, if it can, how.

28. Fourthly, the question of whether effective participation is possible depends not only on the medical condition of the applicant for an adjournment but also, and perhaps critically, on the nature of the hearing: the nature of the issues before the court, and what role the party concerned is called on to undertake. If the issues are straightforward and their merits have already been debated in correspondence, or on previous occasions, or both, there may be little more that can usefully be said. If the issues are more complex but the party concerned is capable, financially and otherwise, of instructing legal representatives in his or her place and of giving them adequate instructions, their own ill-health may be of little or no consequence. All depends on the circumstances, as assessed by the court on the evidence put before it.

29. The fifth point that may be of significance here is that, sometimes, it may appear to the court at the outset or after hearing some at least of the rival arguments that in truth the matter before it is one on which one or other side is bound to succeed. The closer the case appears to one or other of these extremes the less likely it is that proceeding will represent an injustice to the litigant. Thus, in Boyd & Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516 the Court of Appeal proceeded with the hearing of an appeal on the basis that it would refuse an adjournment if it concluded, as it did, that the appeal had no real prospect of success. This appears consistent with the conclusions of Neuberger J in Fox v Graham that where the court refuses a litigant in person an adjournment it may proceed in his absence if satisfied either (a) that it is right to grant the applicant the relief sought or (b) that the application is plainly hopeless.

30. I accept the point made by Ms Wilson, in order to assist the court, that when considering an adjournment application the court’s approach should to an extent be affected by whether the matter involves applications of a case management nature, or final determinations on the merits such as an order striking out a statement of case or part of it, where Article 6 of the Convention is engaged. The court will need to be more cautious in cases falling within the second category. Nonetheless, the factors I have identified above are relevant in both contexts.”

  1. I note that paragraph 22 of Decker v Hopcraft discusses the position in relation to a first application for an adjournment on medical grounds. As is apparent from my recitation of the relevant facts set out above, this is Regent’s/Mr White’s second application for an adjournment.
  2. I accept the medical evidence presented by Mr White, as far as it goes. It is clear from Mr White’s witness statement and its attachments that he has been undergoing chemotherapy for inoperable cancer. However, the evidence of his diagnosis and chemotherapy treatment is from March and is now out of date. The more recent document, a brief report from Newport Surgery, appears to be from general practitioners (rather than oncology specialists), is general in its terms, and is itself now six weeks old. It is addressed “TO WHOM IT MAY CONCERN”: it is possible that it was obtained for other purposes. If it had been obtained for the purposes of these proceedings, the adjournment request ought to have been made at that time. Further, there is no mention of the “reasoned prognosis” that Norris J suggests in Levy v Ellis-Carr. There is also nothing to assist the court in understanding what arrangements might be made short of an adjournment to accommodate Mr White – for example, as suggested by Mr Sawtell, his attendance by videolink.
  3. I also gratefully adopt the words of Vos J (as he then was) in the Bank of Ireland case, observing that the defendant “has been communicating with … the claimants over a lengthy period in the most coherent fashion. He is plainly perfectly capable of expressing his point of view, taking decisions and advancing his case”. The same can readily be said of Mr White. I can see nothing in the evidence to suggest that Mr White is not capable of instructing legal professionals to represent him/Regent, nor any financial evidence to suggest impecuniosity on behalf of either Regent or Mr White which would prevent legal professionals being retained. Indeed, Mr White has been most active during the period of his illness: he has issued two statutory demands, and engaged in lengthy correspondence with Mulalley’s solicitors and the Official Receiver. He has also become the sole director of Regent. He wrote nine emails to Mulalley’s solicitors in the 48 hours prior to the hearing. I have no doubt that Mr White is and has been very sick. I also have no doubt that chemotherapy can be debilitating, and I have every sympathy with any patient undergoing such treatment. But I have seen no evidence that Mr White is unable to conduct his affairs – indeed, the evidence points in the other direction. Nor have I seen sufficiently detailed, recent evidence to enable me to assess what steps might be taken to alleviate Mr White’s concerns.
  4. I am also mindful of the nature of the hearing and the remedies sought against Regent and Mr White. Mulalley seeks to prevent the presentation of a winding up petition. Whilst Mulalley is the Applicant in these proceedings, it is, in reality, responding to the statutory demand issued by Regent/Mr White. Mulalley has brought the proceedings because of the threat to wind it up, made by Regent/Mr White. The option has always been available to Regent/Mr White to pursue a contested debt in the usual way under Part 7, rather than using the statutory demand procedure for uncontested debts. Any injunctions issued will not remove that option. On the other hand, Mulalley faces what Mr Sawtell described as a “sword of Damacles” hanging over its head – whilst it had and has the benefit of undertakings from Regent/Mr White until the disposal of its application, it suffers in the meantime the prejudice of an outstanding statutory demand against it and on-going threats to inform its bankers, as well as the costs of having to prepare for two hearings.
  5. I also take into account Warby J’s fifth point. It did appear to me having read the papers and heard from Mr Sawtell the rival arguments that an adjournment would merely be delaying the inevitable. For the reasons set out below, I consider that Mulalley is entitled to injunctions, because of the three grounds open to it to contest the debt claimed to be owed to Regent/Mr White.
  6. In reaching my decision, I have also been mindful of the overriding objective to deal with cases justly and at proportionate cost. Whilst the current application is one for injunctions, the case overall relates to an alleged debt of just over £30,000. It is thus particularly important that the matter should be managed efficiently and without avoidable delay.
  7. For the reasons set out above, at the hearing I refused the application for an adjournment. Applying the principles set out above, I also proceeded in Mr White’s absence.”

THE RESULT

Injunctions were granted. The respondents were ordered to pay costs assessed at £16,128.28.

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