ADJOURNMENT OF TRIAL ON THE GROUNDS OF ILL-HEALTH: COURT OF APPEAL OVERTURNS DECISION THAT HEARING SHOULD GO AHEAD: A TRIAL SHOULD BE “FAIR IN ALL THE CIRCUMSTANCES”

“Applying for an adjournment on the grounds of ill health” is a common (indeed one of the most common) search terms that leads people to this blog.  It is unusual to see a Court of Appeal decision on this issue. Judgment was given today in Bilta (UK) Ltd & Ors v Tradition Financial Services Ltd [2021] EWCA Civ 221 where the Court of Appeal allowed an appeal against a decision to refuse an adjournment when one of the witnesses was not available for health reasons.

“… the guiding principle in an application to adjourn of this type is whether if the trial goes ahead it will be fair in all the circumstances”

PRACTICE POINT

This is a case where there was no doubt that the witness had been ill and was likely to recover in time for an adjourned trial.  Many applications fail because of the paucity of evidence, particularly medical evidence.  Anyone seeking an adjournment must ensure that there is cogent evidence available.

THE CASE

The claim, brought by liquidators, involved allegations of dishonesty being made against five individuals. One of those individuals was thought too ill to ever be likely to attend.  A Civil Evidence Act notice was served in respect of her evidence.   The trial was listed for January 2021. However the prognosis improved for the witness improved and she was likely to be fully recovered by the end of September 2021. An application was made to adjourn the trial date to the first convenient date after 1st October 2021 to allow that witness to attend. The judge refused that application.  The appeal was heard by the Court of Appeal on an expedited basis.

THE GUIDING PRINCIPLES

Lord Justice Nugee set out the the relevant principle.

1. In those circumstances we were taken to a number of authorities, dating back to long before the introduction of the CPR, and received much more extensive submissions on the law than it appears the Judge did. I consider the authorities below, but it may be helpful if I indicate my conclusions on the relevant principles at the outset. These are that Mr Scorey is right that the guiding principle in an application to adjourn of this type is whether if the trial goes ahead it will be fair in all the circumstances; that the assessment of what is fair is a fact-sensitive one, and not one to be judged by the mechanistic application of any particular checklist; that although the inability of a party himself to attend trial through illness will almost always be a highly material consideration, it is artificial to seek to draw a sharp distinction between that case and the unavailability of a witness; and that the significance to be attached to the inability of an important witness to attend through illness will vary from case to case, but that it will usually be material, and may be decisive. And if the refusal of an adjournment would make the resulting trial unfair, an adjournment should ordinarily be granted, regardless of inconvenience to the other party or other court users, unless this were outweighed by injustice to the other party that could not be compensated for.

THE CASE LAW RELATING TO ADJOURNMENT AND ILL HEALTH

Lord Justice Nugee carried out an extensive review of the authorities on this issue.

1. 1. The authorities to which we were referred were the following. With one exception (the decision of Lightman J in Albon v Naza Motor Trading Sdn Bhd (No 5) [2007] EWHC 2613 (Ch) (“Albon”)), they were all decisions of this Court.

1. 1. Dick v Piller [1943] 1 KB 497 was an appeal by the defendant from the Epsom County Court. The plaintiff was a racehorse trainer who sued for monies due under an oral contract with the defendant for the training and racing of his daughter’s racehorses; the contract was not denied, but the defendant disputed the quantum due on the basis of overpayments and other grounds. Scott LJ referred at 499 to the fact that the arrangements were all made by word of mouth and the payments not documented, and said:

“The defendant’s evidence was, therefore, material, and perhaps, critically important, if the issues raised were really to be tried on their merits, for nobody else could give his evidence.”

The case had already been adjourned part-heard once and at the resumed hearing the defendant applied for a further adjournment on the basis of a medical certificate that he was unable to leave his house for two weeks due to illness. The County Court judge refused an adjournment and gave judgment for the plaintiff.

1. 1. At that date an appeal from the County Court only lay on a point of law. The majority of the Court of Appeal (Scott LJ and Croom-Johnson J) held that the judge had made an error of law. Scott LJ put it like this (at 499):

“I think the judge caused a serious miscarriage of justice, and that, in doing so, he neglected a first principle of law, for he deprived the defendant of his elementary right to be heard before he was condemned.

…The case resolves itself into a short question of law. If an important witness – a fortiori if he is a party – is prevented by illness from attending the court for an adjourned hearing, at which his evidence is directly and seriously material, what is the legal duty of the judge when an adjournment is asked for? In my view, if he is satisfied (1.) of the medical fact and (2.) that the evidence is relevant and may be important, it is his duty to give an adjournment – it may be on terms – but he ought to give it unless, on the other hand, he is satisfied that an injustice would thereby be done to the other side which cannot be reduced by costs. These questions may depend on matters of degree, and matters of fact may be involved (as du Parcq L.J. truly says), but on the facts of the present case I think the judge went wrong in law because (1.) my two positive conditions were satisfied, and (2) no suggestion was made that an injustice would result to the plaintiff.”

Croom-Johnson J said (at 505) that he had no doubt not only that the defendant’s evidence was relevant but also that it was:

“essential to the proper presentation of the defence and vital to be considered if justice were done”

and added:

“I cannot believe that the judge applied his mind to the possibility of an injustice resulting from the case being decided without the defendant’s evidence. Had he done so, he must, I think, have come to only one conclusion.”

Du Parcq LJ disagreed, but only on the question whether the judge was entitled to find as a fact that it had not been established that the defendant was in fact ill and unable to attend (and hence that no appeal would lie), saying (at 502-3) that he would assume that if the judge had been satisfied of this, his decision to proceed would be an error of law.

1. 1. Two things are notable from the decision. The first is that although it was the defendant himself whose evidence was in issue, this was not said to be the decisive factor: Scott LJ referred to his evidence being “material, and, perhaps, critically important” and stated the principles by reference to “an important witness – a fortiori if he is a party” whose evidence is “directly and seriously material”; Croom-Johnson J based his decision on the evidence being “essential” and “vital”, rather than on the fact that the evidence was that of the defendant. It is difficult to think that the decision would have been any different if the relevant witness had not in fact been a party – if, for example, all the arrangements had been made orally between the plaintiff and the defendant’s daughter, and she were the one who was unable to attend.

1. 1. The second is that the members of the Court of Appeal, or at any rate the majority, thought it plain that a trial in such circumstances would prima facie cause injustice to the defendant – or in other words would be unfair. There have of course been many procedural changes since 1943, not least the introduction of the CPR, but unless these have made all the difference, it would I think be surprising that what struck them then as giving rise to a clear risk of injustice should be regarded very differently today.

1. 1. Green v Northern General Transport Co Ltd (1970) 115 SJ 59 (“Green”) was an appeal from a decision of Eveleigh J refusing an adjournment of the trial of a personal injuries action. The action was heard in Durham and the defence applied for an adjournment on the ground that a material witness, aged 73 and with bronchitis, was in Somerset. Lord Denning MR (with whom Edmund Davies and Megaw LJJ agreed) was reported as saying:

“If by refusing an adjournment an injustice would be done, the judge erred in point of law if his decision was unjustified. If there was a material witness who was not available or whose presence was desirable the judge should grant an adjournment provided that any injustice so caused could be compensated in costs.”

He cited Dick v Piller and the same two points can be made: this was a case of the unavailability of a material witness, rather than that of the defendant (a corporate body) itself; and the relevant question was whether an injustice would be done by refusing an adjournment.

1. 1. Lombard Finance v Brookplan Trading & Ors (22 Feb 1990, unrepd) (“Lombard Finance”) was another appeal from a refusal to grant an adjournment, this time from the Oxford County Court. The appellant, one of the defendants, was an individual who was sued on a guarantee. His defence, among other things, was that the guarantee had been materially altered after he signed it and his initials forged on the alteration. He applied to adjourn the trial two weeks before its fixed date having discovered that his expert handwriting witness was already committed to other hearings in Leeds on the relevant dates. The County Court judge refused, effectively on the basis that he had left it too late. Taylor LJ (with whom Bingham LJ agreed) said that the judge’s discretion was unfettered but had to be exercised judicially, and that this Court would not interfere unless it were such as to amount to an error of law or be likely to cause a miscarriage of justice, citing Dick v Piller. He said he had considerable sympathy with the judge’s concern that administrative arrangements of the courts should not be frustrated by capricious applications for adjournments. But the application here was genuine, made two weeks before trial, and without his expert witness the applicant’s case, certainly in relation to the alleged forgery, would “clearly be at a very severe disadvantage.” He continued:

“I have borne in mind the reluctance this court should have to interfere with the exercise of a judge’s discretion, but it does seem to me that it would be unfair in the extreme that, against the background of circumstances I have described, this applicant should be deprived of the expert witness simply because he did not notify the court a little earlier that the witness was not available.”

Again this was a case where the unavailability was that of an important witness not of the defendant himself, and the relevant question was whether it would be unfair to go ahead with a trial in the circumstances.

1. 1. In Teinaz v Wandsworth London BC [2002] EWCA Civ 1040 (“Teinaz”) the applicant had brought a complaint to the Employment Tribunal of racial discrimination and unfair dismissal, and applied to adjourn the hearing on medical grounds. The Tribunal had refused to adjourn it but the Employment Appeal Tribunal had allowed an appeal. On the defendant Council’s further appeal to this Court, Peter Gibson LJ (with whom Arden LJ and Buckley J agreed) made some general observations on adjournments at [20]-[23], including the following:

“20. … Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so is a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment. As was said by Atkin LJ in Maxwell v Keun [1928] 1 KB 645, 653 on adjournments in ordinary civil actions:

“I quite agree that the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; on the other hand, if it appears that the result of the order below is to defeat the rights of the parties altogether and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty to do so.”

21. A litigant whose presence is needed for the fair trial of a 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 or 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. 1. He then gave some guidance as to what a court or tribunal should do if it is presented with some evidence that a litigant is unfit to attend, but has doubts whether it is genuine or sufficient. Such a situation arises not infrequently, and it often calls for careful handling: see the notes in Civil Procedure (the White Book) 2020 at §3.1.3 and the cases there cited, in particular the guidance given by Norris J in Levy v Ellis-Carr [2012] EWHC 63 (Ch), endorsed by decisions of this Court. But the present case was not one where there was any doubt about the medical evidence, which was detailed, recent and entirely compelling, and which the Judge rightly accepted without qualification.

1. 1. Teinaz then was a case of a litigant’s unavailability rather than that of a witness, which explains the reference to Article 6 of the European Convention on Human Rights (“Article 6”), but with that difference does not seem to me to take any different view from that found in the earlier authorities.

1. 1. Albon was a case where shortly before the hearing of a crucial application the defendant stood down its legal team, save to apply for an adjournment on the basis that a witness was too sick to travel from Malaysia to England, failing which the application would be abandoned. Lightman J was faced with a submission, supported by Dick v Piller and other authority, that if four conditions were met, the defendant was entitled to an adjournment as of right. The four conditions were that (i) a witness was unable to attend on grounds of ill-health; (ii) the witness’s evidence was reasonably necessary to present the party’s case properly; (iii) there was a reasonable prospect that the witness would be able to attend an adjourned hearing at a specific reasonable future date; and (iv) that there was no injustice to the other party that could not be compensated for in costs or otherwise (at [14]).

1. 1. Lightman J held that the first condition was met but not the other three. In particular, the witness’s evidence was already before the Court in the form of a witness statement, and the absence of cross-examination would go to weight not admissibility; there was in fact no evidence that cross-examination could not take place by video link (at [15]). Her evidence was very much of secondary importance in any event, not least because she was a personal assistant who herself said her knowledge was limited, and her recollection vague, of the relevant events (ibid). The date when she might be able to attend a hearing was also left uncertain (at [16]); and there was irremediable prejudice to the claimant (at [17]).

1. 1. These conclusions were by themselves sufficient to justify a refusal of an adjournment. Lightman J however went on to say that the question of an adjournment was not, since the introduction of the CPR, governed by the old authorities, but by the overriding objective, and that while no doubt the considerations held critical in the relevant authorities were relevant, they were not decisive (at [18]). He then proceeded to give further reasons for refusing an adjournment: he was very unimpressed with the defendant’s conduct, which had been fairly described by counsel for the claimant as “holding a gun to the court” and for which the defendant and its solicitors were to be seriously criticised (at [19]); he also concluded that the defendant’s claimed reason for abandoning the application was a pretext and not genuine, and was designed to prevent the Court deciding the authenticity of a particular document (at [21]).

1. 1. I will come back to the question as to the effect of the introduction of the CPR on the pre-CPR authorities, but simply note at this stage that Lightman J had ample reasons to refuse an adjournment in any event, and that what he said about the status of the pre-CPR authorities was not necessary to his decision.

1. 1. In Terluk v Berezovsky [2010] EWCA Civ 1345 (“Terluk”) the question was whether an adjournment should have been granted not on the grounds of the unavailability of a party or witness but to enable the defendant to obtain legal representation. It is of interest for two points made by Sedley LJ (on behalf of himself and Mummery LJ). First at [18]:

“Our approach to this question is that the test to be applied to a decision on the adjournment of proceedings is not whether it lay within the broad band of judicial discretion but whether, in the judgment of the appellate court, it was unfair. In Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, Lord Hope said (at §6):

“[T]he question whether a tribunal … was acting in breach of the principles of natural justice is essentially a question of law.”

As Carnwath LJ said in AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579, §50, anything less would be a departure from the appellant court’s constitutional responsibility. This “non-Wednesbury” approach, we would note, has a pedigree at least as longstanding as the decision of the divisional court in R v S W London SBAT, ex parte Bullen (1976) 120 Sol. Jo. 437; see also R v Panel on Takeovers, ex p Guinness PLC [1990] 1 QB 146, 178G-H per Lord Donaldson (who had been a party to the Bullen decision) and 184 C-E per Lloyd LJ. It also conforms with the jurisprudence of the European Court of Human Rights under article 6 of the Convention – for we accept without demur that what was engaged by the successive applications for an adjournment was the defendant’s right both at common law and under the ECHR to a fair trial.”

And second at [20]:

“We would add that the question whether a procedural decision was fair does not involve a premise that in any given forensic situation only one outcome is ever fair. Without reverting to the notion of a broad discretionary highway one can recognise that there may be more than one genuinely fair solution to a difficulty. As Lord Widgery CJ indicated in Bullen, it is where it can say with confidence that the course taken was not fair that an appellate or reviewing court should intervene. Put another way, the question is whether the decision was a fair one, not whether it was “the” fair one.”

1. 1. In Dhillon v Asiedu [2012] EWCA Civ 1020 (“Dhillon”) the claim was to enforce a charge to recover monies due under a loan that was part of an arrangement under which properties were sold by the claimant to the defendant. The defence relied on oral discussions between the claimant and a Mr Mirza who was the defendant’s business partner and who had conducted the negotiations on her behalf. An adjournment was sought on the first day of the trial on two grounds, one that the defendant was lacking capacity and unable to give evidence, and the other that her litigation friend had had insufficient time to prepare. There had been a long history of adjournments and extensions of time for her to serve evidence; the trial was the third time the matter had been listed for final disposal and by that stage the defendant was debarred under an unless order from adducing any further witness evidence. The judge refused the application to adjourn, and that was upheld on appeal. Baron J (with whom Arden and Davis LJJ agreed) referred to the decisions in Albon and Terluk. The conclusions that she derived from these two authorities (there is no indication that any others had been cited) were as follows (at [33]):

“a.  the overriding objective requires cases to be dealt with justly. CPR 1.1(2)(d) demands that the Court deals with cases ‘expeditiously and fairly’. Fairness requires the position of both sides to be considered and this is in accordance with Article 6 ECHR.

b.  fairness can only be determined by taking all relevant matters into account (and excluding irrelevant matters).

c.  it may be, in any one scenario, that a number of fair outcomes are possible. Therefore a balancing exercise has to be conducted in each case. It is only when the decision of the first instance judge is plainly wrong that the Court of Appeal will interfere with that decision.

d.  unless the Appeal Court can identify that the judge has taken into account immaterial factors, omitted to take into account material factors, erred in principle or come to a decision that was impermissible (Aldi Stores Limited v WSP Group Plc [2007] EWCA Civ 1260, [2008] 1 WLR 748, paragraph 16) the decision at First Instance must prevail.”

On the facts she held that the judge’s decision was one that he was entitled to reach, the defendant being largely responsible for any difficulties, having failed to comply with numerous previous orders at a stage at which she had capacity, and having had plenty of time to prepare her case. She also took into account the fact that the judge concluded that it was most unlikely that she could have given material evidence in any event as the negotiations had been carried out by Mr Mirza (who had died before the trial).

1. 1. The latest case we were shown was Solanki. This was another case where an application for an adjournment of the trial on the grounds of illness of the defendant had been refused. Gloster LJ considered the principles at [32]-[35]. At [32] she summarised the position as follows:

“Mr Small rightly accepted that the question of whether or not to grant an adjournment of a trial on health grounds was a discretionary matter for the trial judge. However, as he submitted, and as I accept, the jurisdiction of this court is not confined simply to considering whether irrelevant factors were taken into account, or relevant ones were ignored in the Wednesbury sense, or whether the decision not to adjourn lay within the broad band of judicial discretion of the trial judge. Rather, the authorities make clear that, in reviewing the exercise of discretion, the Court of Appeal has to be satisfied that the decision to refuse the adjournment was not “unfair”: for example, see Terluk v Berezovsky [2010] EWCA Civ 1345 (per Sedley LJ at paras 18-20), quoted below, particularly in circumstances where his right to a fair trial under Article 6 ECHR is at stake.”

Having cited from Teinaz and Terluk she said at [35]:

“Obviously overall fairness to both parties must be considered.”

On the facts the appeal was allowed.

CONCLUSION ON THE PRINCIPLES

The judge then set out the principles that govern this type of application.

Conclusion on the principles

1. 1. I have undertaken this extensive review of the authorities in the light of the submissions we have received. As so often when a number of authorities are examined, it is possible to find differences of emphasis, but I do not myself think that it is difficult to identify the principles which should be applied. I can do so by reference to the propositions advanced by Mr Scorey and Mr Parker respectively.

1. Mr Scorey’s propositions were as follows:

(1) Whether as a matter of the common law’s insistence on a fair trial, or the requirements of Article 6, or the application of the overriding objective, the test is the same, namely whether a refusal of an adjournment will lead to an unfair trial.

I agree. This is a consistent thread from the early cases (Dick v Piller, Green) which refer to a miscarriage of justice or an injustice, through Teinaz (“a denial of justice”) to the more recent cases, which repeatedly identify the question as one of fairness: see in particular Terluk at [18] and Solanki at [32].

(2) Although the decision is a discretionary one, the appellate court will adopt a “non-Wednesbury” review of the lower court’s decision.

There is undoubtedly support in the cases for describing the question of an adjournment as a discretionary decision, as in one sense it plainly is, CPR r 3.1(2)(b) (which is where the Court’s power to adjourn is found) providing that the Court “may” adjourn a hearing. But as pointed out by David Richards LJ in argument, if the question is whether the resulting trial will be fair, this is more of an evaluative question. Nothing turns in the present appeal on the precise classification and I prefer to say simply that the question on appeal is whether the lower court was entitled to reach the decision it did, and that in this particular context it is clear from the authorities that the appellate court must itself be satisfied that a decision to refuse an adjournment was not such as to cause injustice or unfairness. Again this is a consistent thread from the early cases through Teinaz and Terluk to Solanki. And I accept Mr Scorey’s submission that insofar as Dhillon at [33(c) and (d)] suggests that the appellate court’s review is similar to that of any discretionary case management decision, it is out of line with the other authorities.

(3) When considering whether a particular outcome is fair, it should not be assumed that only one outcome is fair.

This is established by the authorities: Terluk at [20], Dhillon at [33(b)]. But equally in some circumstances there is really only one answer: see Teinaz at [20] (“some adjournments must be granted”).

(4) Fairness involves fairness to both parties. But inconvenience to the other party (or other court users) is not a relevant countervailing factor and is usually not a reason to refuse an adjournment.

This is again established by the authorities. As to fairness involving fairness to both parties, see Dhillon at [33(a)], Solanki at [35]. As to the requirements of a fair trial taking precedence over inconvenience to the other party or other court users, see Teinaz at [21]. But Mr Scorey acknowledged, as can be seen from the earliest cases, that uncompensatable injustice to the other party may be a ground for refusing an adjournment.

1. 1. Mr Parker’s central proposition was that there is a real and significant difference between an application to adjourn based on a party’s own unavailability and the unavailability of an important witness. I have already indicated that I do not accept this submission. I do not think any support for it can be found in the authorities. As shown above, Dick v Piller was premised on the importance of the defendant’s evidence, not on the fact that he was a party; and Green and Lombard Finance were examples of important witnesses being unavailable. Although none of the cases since Albon have concerned the unavailability of a non-party witness, nothing in them suggests that this has changed.

1. 1. What is true is that since the Human Rights Act, Article 6 has underlined a party’s right to a fair trial in the determination of his civil rights and obligations, and no doubt Article 6 is likely to be engaged when it is the party himself that is unavailable. But even then, this may depend on the extent to which the party’s own presence is important: see Teinaz at [21] referring to the case of a litigant “whose presence is needed for the fair trial of a case”. The question may of course be affected by whether a litigant is acting in person, but where litigants are represented, it is far from universally the case that a fair trial requires their personal attendance. Some cases turn on pure points of law on which contested evidence is not required at all. In others, although there are issues of fact, the litigant himself has little relevant evidence to give. Dhillon was such a case (as well as being an example where there was no unfairness as the situation was really of the defendant’s own making). And where the litigant is a corporate entity, those responsible for the conduct of the litigation may be very different from the witnesses it intends to call, and the inability of the latter to attend court may be much more significant.

1. 1. We were not shown any authority on whether Article 6 is engaged when a party is able to attend trial but a significant witness is not. But in any event the applicability of Article 6 is not the determining factor. The common law’s insistence on a fair trial long pre-dates it, and for the reasons I have given I do not accept that a sharp distinction can be made between the case of the illness of a party as opposed to that of a witness; what fairness requires will depend on all the circumstances of the case.

1. 1. Mr Parker also submitted that whereas the pre-CPR cases had laid down very prescriptive rules to the effect that if an important witness was unavailable, the party was almost guaranteed an adjournment, Dick v Piller was no longer good law since the introduction of the CPR, relying on Albon and its approval in Dhillon. I have already said that what Lightman J said in Albon was unnecessary to the decision, and technically what Baron J said about it in Dhillon was also obiter as that was not a case of the unavailability of a witness. But I have no difficulty with the proposition that what fairness requires must depend on current procedures, and litigation is now conducted in a way that is very different in some respects from how it was conducted in 1943. Evidence was almost all given orally, with very limited scope for hearsay to be adduced, whereas now evidence in chief is universally given by witness statement, and hearsay evidence is generally admissible, with the result, as Lightman J pointed out, that the non-attendance of a witness does not prevent their evidence being adduced at all; it goes to the weight to be attached to it. And although oral evidence with cross-examination is still the hallmark of English trials, the significance of oral evidence varies from case to case: in some it is critical, whereas in others the contemporaneous documentation is in practice of far more utility in deciding the issues.

1. 1. I accept therefore that the importance of a particular witness’s oral evidence to the fairness of a trial will all depend on the facts, and the question cannot be approached in a mechanistic or box-ticking manner. But Mr Scorey did not suggest it could. And, as I have already said, I do not find anything in the authorities since the introduction of the CPR which suggests that the availability of an important witness has ceased to be a relevant consideration, and there is no reason to conclude that it has.

1. 1. Mr Parker had a third submission, which was that in applying the overriding objective under CPR r 1.1 the need to ensure that a case is dealt with expeditiously and fairly is only one of the factors to be taken into account, and that all the factors are relevant. As a matter of the drafting of the rule that is no doubt true (see CPR r 1.1(2) where this is but one of the matters listed), but in the ordinary case if a judge concludes that the unavailability of an important witness would make the resulting trial unfair, it is difficult to see how an adjournment could properly be refused, and indeed as I understood it Mr Parker accepted that.

2. In my judgment therefore the relevant principles are as I have set them out at paragraph 30 above.

APPLYING THESE PRINCIPLES TO THE FACTS OF THIS CASE

Applying those principles to the facts of this case the Court of Appeal agreed that an adjournment should be granted.

1. 1. Mr Scorey submitted that it followed from the principles discussed above that the Judge should have asked himself whether it would be fair to have a trial without the oral evidence of Ms Mortimer, and then if the answer were No, whether that was outweighed by uncompensatable prejudice to the Claimants. For the reasons I have given I accept that submission.

1. 1. Mr Scorey then submitted that that was not how the Judge approached it. The Judge’s reasons are found in the Judgment at [20] (set out at paragraph 25 above). At [20(1)] he said that the appropriate time for applying for an adjournment on the basis of Ms Mortimer’s position would have been in November 2020, but he himself answers this at [20(2)] where he accepts that in the light of her then prognosis there would have been no point in doing so. He also says that Mr Scorey did not rely on her position as a self-standing reason for an adjournment; this was not in fact right (as the Judge accepted in the PTA Ruling), but this is not significant as the Judge indicates that he would not have acceded to it on that basis anyway. But the reason he gives is that it is not sufficient to justify an adjournment of a significant trial, and could not justify standing a trial of this sort out of the list.

1. 1. Mr Scorey submitted that the Judge appears to have weighed up the inconvenience of standing a significant case out of the lists very shortly before trial against the fact that Ms Mortimer was an important witness for TFS who positively wished to give evidence (see PTA at [6]), instead of asking himself whether the resulting trial would be fair or not.

1. 1. Mr Parker accepted that the Judge did not expressly deal with the question of the fairness of the resulting trial, but pointed out that in an earlier part of the Judgment, when discussing the question of remote hearings, the Judge had referred to the Court being the ultimate arbiter of whether proceedings so conducted “can be fair and proper”, and suggested that he must have had this in mind and it was implicit in the Judge’s reasoning that he considered that the trial would be a fair one even in the absence of Ms Mortimer.

1. 1. To my mind however Mr Scorey’s submission is well-founded. Reading both the Judgment and the PTA Ruling together, it does seem to me that the Judge balanced the importance of the evidence to TFS against the inconvenience of an adjournment rather than focusing on whether the trial would be fair; and that that entitles – indeed obliges – us to form our own view on the question of fairness.

Would it be fair to proceed to trial without Ms Mortimer’s evidence?

1. 1. I can deal with this quite shortly. Ms Mortimer, as the Judge recognised, is an important witness for TFS. Mr Parker expressly accepted that he had never sought to suggest otherwise. Cases where an individual is accused of dishonesty are paradigm examples where the trial judge will benefit from seeing the witness being cross-examined. The case against her is heavily based on inferences from transcripts of recordings of telephone conversations. TFS is undoubtedly justified in wanting her to give oral evidence to explain, if she can, why those inferences should not be drawn. She has given a witness statement, but to proceed without her oral evidence and without it being tested in cross-examination will undoubtedly limit the weight that the trial judge would be able to give it. In circumstances where it appears very likely that she will be able to give oral evidence at a trial in or after October 2021, it does not seem fair to me that TFS should be deprived of the opportunity of calling her in person.

1. 1. It is not suggested that there would be any uncompensatable prejudice to the Claimants. The Judge himself accepted that the claim was “just” about money, and that it was not one of those cases where there would be extraordinarily adverse consequences if it were put off again (Jmt at [21]). It is admittedly already a stale case, but the Claimants’ case, as I have explained, does not rely on recollections of witnesses which would be liable to fade, and there seems no reason to think that the presentation of its case will be adversely affected. TFS has offered in correspondence to pay the Claimants’ reasonable legal costs thrown away by the adjournment, and, in the event the claim succeeds, to pay interest in respect of the period from April 2020 until the commencement of the re-listed trial (without prejudice to any arguments the Appellant may make in respect of earlier periods and as to the basis and rate of interest). Mr Parker suggested that that would not fully cover the Claimants against liabilities under their CFA arrangements, but that was not a point dealt with in the Judgment or raised in the Respondent’s skeleton, nor have we seen the CFA in question, and I do not think we can go into it.

1. Those were the reasons why I agreed that the appeal should be allowed and the trial adjourned to the first available date after 1 October 2021. We were told that in the normal course the trial would be listed from about March 2022. It is not for us to direct whether the trial should be expedited, but we directed the parties to write to the Chancellor of the High Court inviting him to consider the question.

THE JUDGMENT OF LORD JUSTICE PETER JACKSON

This short judgment highlights the fact that a litigant has to “substantiate the reasons for an adjournment”. In the absence of such evidence “the outcome of the exercise of the discretion will scarcely be in doubt”.

1. I agree, and only add two matters. First, as seen from the transcript and the judgment, the focus of the application made to the Judge was very much on the issue of the physical attendance of the three other witnesses, as to which there is no appeal (see paragraph 20 above). Ms Mortimer’s position was in consequence much more shortly dealt with, to the extent that the Judge initially mistook the nature of the application in her regard. Second, I would endorse what Nugee LJ says at paragraph 39. There are two aspects to an application to adjourn: assessing the facts and exercising the discretion. Here, the facts supporting the application were not in dispute and the appeal concerned the exercise of discretion. But in every case, the court will first need to assess the facts behind the application, and where a litigant fails to substantiate the reason for an adjournment, the outcome of the exercise of discretion will scarcely be in doubt.