DEFENDANT’S APPLICATION FOR ADJOURNMENT OF TRIAL REFUSED: A PROBLEM OF THEIR OWN MAKING: THE TRIAL WILL GO AHEAD
There is an interesting summary of the decision in Mitchell -v- Precis 545 Ltd (15/11/2019) on Kings Chambers website. A report by my colleague Jeremy Roussak of a case where he represented the claimant and where HHJ Freedman refused a defendant’s application to adjourn an imminent trial. A defendant’s expert could not attend the trial. This problem was a problem of that defendant’s own making. There is a lesson here for anyone conducting litigation: an expert must be told of the trial date at the very earliest opportunity; any application to adjourn because of witness unavailability must be made promptly.
THE CASE
- The deceased died in 2015. The personal injury claim for mesothelioma damages was brought by his widow.
- The first defendant instructed an expert, but did not inform the expert of the trial window.
- In April 2019 the trial was fixed for 18-20 November.
- In July the first defendants’ expert was told of the trial date. He told the defendants’ solicitors that he was out of the country.
- The defendant made the application to adjourn three weeks before the fixed trial date (19th November 2019).
THE DECISION
The defendant argued that it could not properly argue the case without the expert evidence. It was held:-
- It was obvious that the application to adjourn should have been made in July.
- The obligation was on the defendant solicitors to ensure that the expert was available.
- There were a number of culpable errors.
- It was relevant to the balancing exercise that this was a problem of the defendant’s own making.
- It was also relevant that the claimant was 84 years old and her husband had died over four years previously.
- It would be highly prejudicial to the claimant for the matter to be delayed.
- Applying the overriding objective, it would not be fair or just for the trial to be vacated.
(This summary is drawn from Jeremy’s report and the Lawtel note on the case, the Lawtel Note refers to Freedman J, the hearing was, in fact, before HHJ Freedman).
I was refused an adjournment when, on the day of the trial, the audio loop was found to be of the wrong type- I am deaf- I requested an adjournment, but the judge told me that he would ask everyone to raise their voices…
As a LIP, I had no counsel to speak on my behalf… I was unable to follow proceedings and withdrew. It cost me £30k!