APPLYING FOR AN ADJOURNMENT OF A TRIAL ON THE GROUNDS OF ILL HEALTH: A “CUT OUT AND KEEP” GUIDE TO THE AUTHORITIES

It is surprising how often searches that lead to this blog are questions about seeking adjournments on the grounds of ill health.  This appears to be common issue.  A useful “cut out and keep” summary of the relevant authorities can be found in the judgment in Financial Conduct Authority (FCA) v Avacade Ltd & Ors [2020] EWHC 26.

THE CASE

The third defendant in an action sought an adjournment of a trial that is listed for 19 days.  The third defendant argued that he was medically unfit to take part in that trial.

THE JUDGE’S REVIEW OF THE AUTHORITIES

The judgment of Adam Johnson QC (sitting as a Judge of the Chancery Division) contains a useful review of the relevant authorities.

59. A good starting point is Levy v Ellis-Carr [2012] EWHC 63 (Ch) in which Norris J gave the following guidance on the proper approach to the assessment of the medical evidence relied on in support of an adjourment application:
“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 the 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). The letter on which the Appellant relies is wholly inadequate.”
    1. The guidance given by Norris J has been approved in a number of later decisions, including by Lewison LJ in the Forresters Ketley v Brent [2012] EWCA Civ 324 at [26], and again by the Court of Appeal in GMC v Hayat [2018] EWCA Civ 2796 at [48].
    2. In the Forresters Ketley case, Lewison LJ also said the following at [25] which is relevant in the circumstances of this case:
“Judges are often faced with late applications for adjournments by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.”
    1. GMC v Hayat mentioned above also provides support for the proposition that, in considering the weight to be attached to a particular medical report, the court is entitled, indeed obliged, to look at it in light of the history and the other materials available to it. In that case, Lang J had allowed an appeal from a decision of the Medical Practitioners Tribunal on the basis that the tribunal had failed to adjourn proceedings against the appellant in light of a sick note he produced which advised that he was not fit for work.
    2. Lang J’s decision was overturned by the Court of Appeal. Coulson LJ at [45] said that Lang J appeared to conclude that, because the sick note post-dated earlier evidence of the appellant’s condition, “it somehow trumped all that had gone before it”. Coulson LJ said that was wrong in principle.
    3. At [56] he then said:
“Finally, I consider that the Tribunal was entitled to weigh up the (inadequate) sick note against all of the other material available to them. This included not only the existing medical evidence (and the fact that the sick note was broadly consistent with that other evidence, and not contrary to it) but also the fact that [the appellant] had already made three unsuccessful applications to adjourn this hearing on entirely different grounds, each without success.”
    1. At [57], Coulson LJ said expressly that, as part of these wider considerations, there was the question of the public interest. He said:
“Any adjournment causes extensive disruption and inconvenience and wastes huge amounts of costs. That would have been particularly acute here, given the number of witnesses and the length of the hearing. Those again were relevant factors which the Tribunal was entitled to consider when arriving at its conclusion.”
    1. It is often said that the decision whether to adjourn a trial is a case management one involving the exercise of a discretion. On the other hand, such decisions have been said to engage basic questions of fairness. So, for example, in Teinaz v London Borough of Wandsworth [2002] IRLR 721 Peter Gibson LJ said as follows at [21]:
“A litigant whose presence is needed for the fair trial of the case but who is unable to be present through no fault of his own will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant’s right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.”
    1. Later in the same judgment at [22], after referring to the possibility of the court giving directions for the filing of further medical evidence in doubtful cases, Peter Gibson LJ went on to say the following:
“All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.”
    1. The later case of Mohun-Smith v TBO Investments Limited [2016] EWCA Civ 403 emphasised that there is a material and important distinction between an application for an adjournment of trial and an application under CPR rule 39.3 to set aside a judgment entered in default because of the non-attendance of a party. The decision indicates that the court should not in general adopt too rigorous an approach to the question of whether a good reason has been shown for non-attendance in the context of an application under CPR rule 39.3, but that a rigorous approach is justified in the context of an adjournment application.
    2. Lord Dyson MR explained why at paragraph [26]:
“If the court refuses an adjournment, there will usually be a trial and a decision on the merits, although the unsuccessful applicant will be at a disadvantage, possibly a huge disadvantage, by reason of the absence of the witness or the party himself. Despite their absence and depending on the circumstances, it may still be possible for the disadvantaged claimant to prove the claim or the disadvantaged defendant to resist it. I accept that in some cases the refusal of an adjournment will almost inevitably lead to the unsuccessful applicant losing at trial. That is a factor that must be borne in mind when the court exercises its discretion in deciding whether or not to grant an adjournment. But if the application to set aside a judgment under rule 39.3(3) fails, the applicant will have had no opportunity whatsoever to have an adjudication by the court on the merits. The difference between an application under rule 39.3(3) and an application for an adjournment of the trial is important. Although it has not been articulated as the justification for generally adopting a more draconian approach to the application for an adjournment than to an application under rule 39.3(5), in my view it does justify such a distinction.”
    1. Some further useful commentary was provided by Mr Warby J in a later case involving an application by a litigant in person, Decker v Hopcraft [2015] EWHC 1170 QB at paragraphs [21] to [31]. I draw attention in particular to the following paragraphs from paragraphs [27] and [28]:
“27. … 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. … 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 be 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.”

    1. In Solanki v Intercity Telecom and Another [2018] EWCA Civ 101[2018] 1 Costs LR 103, the Court of Appeal allowed an appeal against a decision refusing an adjournment. The medical evidence relied on was a letter from a doctor indicating symptoms consistent with depression, and reporting an assessment by the practice therapist that the appellant was suffering from “moderately severe depression” and “severe anxiety”. On that basis, the doctor expressed his concerns as to whether the appellant was medically fit to be able to represent himself in court at the present time. The appeal was allowed because the judge failed to give adequate reasons for disregarding the medical evidence.
    2. As Gloster LJ put it at [40], the judge’s view, based apparently on his own observations of the appellant in court, was that the appellant was “putting on an act”, but that was no proper basis for disregarding the professional medical evidence put forward. There was evidence that the appellant was plainly ill and no evidence to suggest that the illness was contrived, see per Gloster LJ at [41].
    3. More recently, in Maitland-Hudson v SRA [2019] EWHC 67 (Admin), the Divisional Court said as follows at [73] to [76] under the heading “Right to a fair trial”:
“73. The right to a fair trial is enshrined under the common law and Article 6. The content of procedural fairness is infinitely flexible. It is not possible to lay down rigid rules to be applied identically in every situation. Whilst there is a core minimum of process required, involving notice and some form of hearing, what is necessary to meet the requirements for a fair trial in any given case will depend on the specific facts, including for example the nature of the proceedings, the stage reached by the proceedings and the overall procedural history. So, for example, a ‘fair’ hearing does not necessarily mean that there must be an opportunity to be heard orally.
“74. The ability of a respondent to participate effectively in regulatory proceedings is a fundamental element of the right to a fair trial. It is to be assessed in the context of the particular proceedings (see for example R v Marcantonio and Chitolie [2016] EWCA Crim 14 at 7) … The courts will interfere to protect it when necessary: see for example Anastasi v Police Appeal Tribunal [2015] EWHC 4156 at 38 and Brabazon-Drenning v UKCC [2001] HRLR 6 where Elias LJ stated at [18] and [19]:
“‘Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands to go on with a hearing where there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process … She clearly was unable to attend this hearing because she was too ill to do so. In those circumstances, I do not think there were any overriding public interest considerations which should have deprived her of her basic rights to be present when the case was put against her, and to be in a position where she could either cross-examine herself or have a representative with whom she could communicate cross-examine on her behalf. It was a breach both of the principles of natural justice and Article 6.’
“75. Equally in R (on the application of Gatawa) v Nursing and Midwifery Council [2013] EWHC 3435 (Admin) a decision not to adjourn a disciplinary hearing to allow more time for a lay representative to prepare on behalf of a nurse, who was suffering from mental illness and was absent, was held not to be have been procedurally unfair when her representative had been given many opportunities to ask for more time.
“76. Thus, refusal of an adjournment to a party unable to attend the hearing, if wrongful, may be tantamount to a denial of justice. Context is everything.”

 

THE DECISION ON THE FACTS OF THIS CASE

The judge refused the application to adjourn.
    1. First, I do not think it is appropriate to adjourn the trial in its entirety at this stage. In the circumstances, that seems to me to be too crude a response to a difficult situation in which many factors are at play beyond the medical condition of the third defendant. Quite aside from the many matters already mentioned above, there are live claims against the other defendants, who do not claim any medical reason for non-attendance.
    2. Second, I would encourage Mr Craig Lummis to give careful consideration, if necessary together with Dr White and/or Mr Akal, as to whether some more limited engagement with the trial process is possible and advisable in the circumstances. That might involve attending only to give evidence, or perhaps even more limited engagement, such as commenting on daily transcripts and having discussions with Mr Lee Lummis. Mr Craig Lummis should be told, and if necessary Dr White and Mr Akal also informed, that the court can make accommodations in respect of vulnerable witnesses and parties. Discussions might also usefully be undertaken with Mr Vineall and his team. I have in mind here the observation of Peter Gibson LJ in the Teinaz case to the effect that adjournment applications of this type may present difficult problems requiring practical solutions.
    3. Third, and in any event, it seems to me that the question of fairness to the third defendant is a matter which should be kept under review as the trial progresses. I have already mentioned above that I see force in the submissions made by Mr Vineall about the nature of the issues in this case. If, as matters progress, his own prognosis on that topic turns out to be correct, that will obviously have consequences in terms of the fair management of the case from the point of view of the third defendant, and it may be possible for the claims against him to be resolved despite non-attendance, if that is what happens. If serious doubts arise, however, it will always be open to the trial judge, it seems to me, to take steps at that time, including, if necessary, adjourning the proceedings against the third defendant alone.
    4. The overall position, therefore, is that the third defendant’s application for an adjournment of the trial is dismissed. I will hear from the parties in connection with any consequential matters arising.