WHEN A DEFENDANT DOES NOT TURN UP FOR TRIAL: THE RELEVANT CRITERIA CONSIDERED

In Van Zuylen v Whiston-Dew & Anor [2021] EWHC 2219 (Ch) Mr Nicholas Thompsell, sitting as a High Court Judge, considered the relevant criteria the court applies when a party fails to attend trial.  The judgment also considers the relevant criteria if an adjournment is sought in these circumstances.

“As with the judge in Levy, I note that, to the extent that trial going ahead does lead to an unfair result, he would be able to seek to have any order put aside under CPR rule 39.3. The availability of this remedy provides an answer to any objection against proceeding in the absence of the First Defendant based on Article 6 of the European Convention on Human Rights.”

THE CASE

The claimant brought an action alleging that the defendants had misused her funds given to them to invest.  The First Defendant was in prison (for matters unrelated to the accident), but steps had been taken to arrange a production order. There had been earlier adjournments at the first defendant’s request.  The first defendant did not attend trial and the judge considered the relevant principles.

THE JUDGMENT ON DELAYING OR ADJOURNING THE TRIAL

The judge noted that no application for an adjournment had been made.  However, even if an adjournment had been sought, the judge was doubtful whether it would have been ordered.

5. The First Defendant is a litigant in person. As a former solicitor and former member of the New Zealand Bar, he is better equipped than most people to represent himself. He has chosen, to the extent that he had a choice given his financial circumstances, not to be represented for this trial. How much choice his financial circumstances have afforded him is not known to the court – the court learned that he has filed for bankruptcy, but there has also been a suggestion that there may exist discretionary trusts and companies offshore from which he might benefit and these may or may not have provided a potential source of funding for representation.

1. 1. The First Defendant did, however, arrange for Mr Timothy Becker of counsel to attend briefly at the start of the trial on his behalf. Mr Becker’s role was limited to explaining the First Defendant’s non-attendance and to informing the court that the First Defendant had filed a petition for bankruptcy very shortly before the commencement of the trial.

(B) The absence of the First Defendant

1. 1. The First Defendant is currently in jail, having been convicted for his part in a fraudulent tax evasion scheme. His conviction was unrelated to the matters involved in this trial. It related to the dishonest formation and abuse of offshore companies and trusts. At his request, he has been permitted to participate in this trial by video link. However, he has chosen not to attend, citing as his reason that he is suffering from stress, anxiety and depression.

1. 1. This is not the first time that the First Defendant has failed to attend a hearing in this matter. On various occasions during this litigation he has sought adjournments based on his personal difficulties.

1. 1. This trial was due to take place on 15 March 2021 but was adjourned until 21 April 2021 at his request. He asked for this because of his difficulties in dealing with the bulk of paperwork involved following its late delivery owing to the document-screening procedures adopted by the prison where he is resident, and his lack of access to legal textbooks, and because of the stress this was causing him.

1. 1. At the adjourned trial date on 21 April, the First Defendant did not attend but instead (via Mr Becker) asked the court to hear a very late and unmeritorious challenge to the court’s jurisdiction and asked for a further adjournment based on the stress and anxiety that the trial was causing to him in the circumstances of his incarceration.

1. 1. His claims concerning his mental health were supported by very weak medical evidence. Despite this, acknowledging the difficulties that he may have had in prison in arranging for a proper medical report, I gave him the benefit of the doubt and accepted a further adjournment until 7 July 2021.

1. 1. I considered that appearing remotely from prison via a video screen might be more stressful than appearance in person. As a result, I also ordered a change to the arrangements previously ordered for a remote trial so that the trial would instead be held in court, and I made a production order requiring the prison to deliver the First Defendant for the trial.

1. 1. I later received an application from the First Defendant requesting permission to attend the trial remotely on the grounds that he was continuing to experience stress, anxiety and depression and that he would find this less stressful than being transferred to a prison in London for the duration of the trial. This application was supported by a copy of part of a medical report.

1. 1. This medical report also was not particularly satisfactory as evidence. It was not addressed to the court but had been produced for other purposes, and the court was given only part of the report and that part did not include any signature. Despite this, I was prepared to take account of it for the purposes of that application. I also considered that the First Defendant was the best person to decide what arrangements for his appearance he would find less stressful. Accordingly, I granted this request.

1. 1. Although the First Defendant, through counsel, has explained that he has not attended this trial owing to the difficulties that he is continuing to face from depression, stress and anxiety, he has not on this occasion, requested any adjournment. Neither has he produced any medical evidence to support any proposition that he is unable to attend, even remotely from his prison. He did inform the court what types of drugs he had been prescribed but not the dosages and with no explanation as to the effect that they might have on him.

1. 1. Under CPR rule 39.3, the court may proceed with the trial in the absence of a party.

1. 1. In anticipation that the First Defendant might not attend (which he had indicated informally shortly before the trial via Mr Becker) and might request an adjournment, I had already reminded myself of the steps that a judge should consider where a party requests an adjournment having failed to attend citing medical reasons.

1. 1. As Gibson LJ noted in Teinaz v London Borough of Wandsworth [2002] EWCA Civ 1040:

“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.”

However,

“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. No evidence was put before the court to substantiate the First Defendant’s inability (as opposed to unwillingness) to attend this hearing. There was no suggestion that he lacks capacity within meaning of the Mental Capacity Act 2005 so as to engage considerations under CPR rule 21.1. On the contrary, it appears that the First Defendant had been able to take various steps to promote his own interests in this litigation. These included most recently bringing forward an application to appeal my earlier decision dismissing his application to strike out these proceedings on the grounds of this court’s lack of jurisdiction, and an unsuccessful application for a stay of proceedings on the grounds that this application for appeal was pending. He had also managed to commence an application for his own bankruptcy and to brief counsel to appear, briefly, at the trial.

1. 1. The question of the court’s discretion in adjourning on medical grounds was considered by Norris J in Levy v Ellis-Carr and others [2012] EWHC 63 (Ch). The judge dismissed a claim that the Registrar who heard that matter had erred in law when she went ahead with the hearing after being informed that the appellant had been medically unfit to attend court. After noting the discretion that the trial judge had on this matter he found that there were ample grounds upon which the Registrar could properly refuse the adjournment noting that:

“There was a history of making applications for adjournments at each stage. The hearing before her was itself a re-listed hearing. There was evident non-cooperation in preparing for the trial. Even on the Appellant’s own case he had made his application for an adjournment at the last possible moment. He adduced no medical evidence. His solicitor deliberately withdrew instructions from Counsel and told Counsel not to attend the hearing. The solicitor on the record made a conscious decision not to attend the hearing. The application was already a year old (partly because the Appellant had sought adjournments to put in evidence and had then not done so) and related to a bankruptcy that had commenced in 1994. The Court could if the hearing proceeded take into account such evidence as he had adduced (even if it did not have the benefit of the criticisms he wanted to make of the trustee’s case all the benefit of any argument he wanted to advance in support of his own). The Appellant would always have available the opportunity afforded by CPR 39.3.”

1. 1. Many parallels apply in the current case. Again, we have a re-listed hearing. The application for adjournment has not, in this case, been made at the last moment – there has been no application at all. The First Defendant has not arranged any representation for the trial and the proceedings have been carried on for some time. Whilst the court is aware of some medical evidence about the First Defendant’s mental health from the previous proceedings, the court has nothing that is more up to date and that evidence was not of the standard that provides a basis for a proper assessment by the court of the First Defendant’s ability to attend the hearing.

1. 1. In Levy Norris J set out a suggestion of the quality of medical evidence needed to support an adjournment on medical grounds. Having given the First Defendant the benefit of the doubt once in accepting an adjournment on weak medical evidence, had I received an application for adjournment late this time I would have wanted this to be supported by proper medical evidence. I had previously issued a warning to the First Defendant that better evidence would be needed for any further adjournment. Needless to say, the requirement for cogent medical evidence is not satisfied in this case as there is no application to adjourn and no evidence tendered supporting a decision to adjourn.

1. 1. The court cannot just take it on trust that a defendant is prevented from appearing merely on the basis of what he has told his counsel to say, particularly in this case, given the history of First Defendant’s conviction for a matter involving fraud. The court cannot know whether his decision not to attend is a tactical one, in the hope of buying time and/or finding grounds to challenge a decision of this court on procedural grounds because he suspects that he cannot win on the merits. For the first adjournment, I was prepared to give the First Defendant something of the benefit of the doubt in relation to the quality of the medical evidence, given the difficulties he might be having in arranging for better evidence. I did not consider that I should do so again after the First Defendant had had some weeks to arrange for this and had been warned of the need for this.

1. 1. Had I received an application supported by cogent medical evidence I would have needed to think very carefully about this. Coulson J in Fitzroy Robinson v Mentmore Towers [2009] EWHC 3870 (TCC) provides an approach for considering whether to go ahead in the absence of a party. The matter should be rooted in consideration of what is known as the “overriding objective” which requires cases to be dealt with justly and at proportionate cost, as enumerated in more detail in CPR rule 1.1(2), the notes in the White Book at paragraph 3.1.3, and the decision of the Court of Appeal in Boyd and Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516. Following this approach and the further comments made by Norris J in Levy I would have needed to have weighed various matters.

1. 1. In particular, I would have needed to have given a great deal of consideration to whether there could be a fair trial with the parties being placed on an equal footing, especially given the First Defendant’s dual role as advocate for himself and as a material witness. The stakes are increased by the fact that this is the trial that should finally determine these matters rather than any interim proceedings.

1. 1. However, it certainly is not the case that a final hearing can never go ahead in the absence of one of the parties. As with the judge in Levy, I note that, to the extent that trial going ahead does lead to an unfair result, he would be able to seek to have any order put aside under CPR rule 39.3. The availability of this remedy provides an answer to any objection against proceeding in the absence of the First Defendant based on Article 6 of the European Convention on Human Rights.

1. 1. Even taking account of the considerations mentioned at paragraph 25, I am by no means sure that I had I been asked for an adjournment on substantiated medical grounds, I would have necessarily determined that a further adjournment would be in the interests of justice. I would have needed to weigh also the further factors that are to be taken into account within CPR rule 1.1 and the guidance provided by the decisions in the cases mentioned above.

1. 1. Under CPR rule 1.1(2), the court is required also to ensure that that the case is dealt with proportionately, expeditiously and fairly; and that an appropriate share of the court’s resources is allotted, taking into account the need to allot resources to other cases. I would need to consider costs that would be wasted by the Claimant and by GBT in preparing for trial if we adjourn further and the waste involved of the court’s time. In considering the requirement that the trial should be dealt with expeditiously I would need to consider the many delays that have already been occasioned by the First Defendant. Furthermore, the court has been aware that matters have been fast moving, with the looming bankruptcy of the First Defendant and the prospect of an action challenging the validity of the charge over the land in Essex. It is also relevant that the material circumstances of the First Defendant that are causing him stress and anxiety are unlikely to change in the next few years so there can be no certainty as to when he might be any more ready for trial.

1. 1. As regards the other specific matters suggested by Coulson J, to apply where a court is considering a contested application at the 11th hour to adjourn the trial, those relevant in this case include:

(a) The parties’ conduct and the reason for the delays. The Claimant and GBT are all but blameless in relation to the recent delays in the trial and that these are all due to the position of the First Defendant. Whilst I acknowledge the difficulties the First Defendant has had in managing his affairs from prison, I am not satisfied that he has been doing his best to prepare for the trial. Instead he seems to have concentrated on procedural matters, with a view to stopping or delaying it.

(b) The consequences of an adjournment for the Claimant, the First Defendant, and the court. I consider that a further adjournment would cause difficulties for the Claimant as she is left out of her money and unable to take steps to react to other issues affecting the charge over the land in Essex. Also, according to her counsel, she too may be suffering from anxiety caused by the continuing uncertainty of the outcome of this action. For both the Claimant and GBT, a further delay would increase their costs. As regards the First Defendant, whilst it is possible that proceeding now may cause stress to him, this is something which he must face at some time and there is an argument that his mental health might be better served in the long run by getting this trial over with one way or another.

1. 1. There is another consideration that can sometimes arise, and which arose in Boyd and Hutchinson v Foenander. This is that it may appear to the court at the outset or after hearing some at least of the rival arguments that one or other side is bound to succeed on the matter to be determined. 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. If asked to consider an application to adjourn, I would approach this last consideration with a large degree of caution in a case that will turn on disputed facts, if it were possible that the evidence of the First Defendant, or his cross examination of evidence given by others, could have an effect on the outcome of the trial. However, in this case I am struck by the fact that to a very large extent the First Defendant’s Defence and witness statements to date have not been substantially based on any factual dispute. Instead they depend largely on what appeared to me to be a doubtful proposition that that none of the various causes of action alleged against the First Defendant applied because the matter was entirely governed by the terms of the alleged “Azure Trust” and he was not under those terms obliged to account for his actions.

1. 1. In summary, in the absence of an application to adjourn and, crucially, of any evidence that the First Defendant was unable, as opposed to unwilling, to attend, I considered that it was in the interests of justice for the trial to continue as requested by both the Claimant and GBT. However, had I received an application to adjourn supported by cogent medical evidence, I am not sure whether I would have granted this application but it would be by no means certain that I would have done so.

1. 1. Having made the decision within my discretion under CPR rule 39.3(1) to proceed with the trial, I noted that a consequence was that the court had power under CPR rule 39.3(1)(c) to strike out the First Defendant’s Defence. Neither the Claimant nor GBT requested this and I did not think it appropriate to do this.

1. Accordingly I allowed trial to proceed and for the Defence to stand.