Adjourning trials

During the last year much of the work of the courts has gone online.  This is a relief for many as I note that this week there were reports of confirmed Covid-19 cases amongst staff, judges, court users at 95 different sites in the month of February.

There was, at the start of the lockdown 1, a brief pause while everyone involved in litigation realised that the court IT system (never known for its efficiency) had to cope with a complete change in working practice. The court service was hit by numerous applications for all sorts of variations in timetables and practice, amongst which there were many relating to trials in person in a court room.

The applications to vacate trials were usually on the basis that a remote trial would be an unfair way to conduct a final hearing of a case.  That includes the difficulty in assessing witnesses via a video link (and on occasions telephone), difficulties with Wi-Fi, signals and so on.  Notwithstanding this, the court system has in fact largely risen to the challenge.  Judges have been generally excellent at dealing with quite difficult situations as have the legal teams in trying to get witnesses properly set up, ready to give evidence and to be cross examined as necessary.

For the most part therefore the court system has soldiered on in a somewhat haphazard but increasingly efficient way. Trials have not been adjourned in significant numbers. Quite the opposite and this is because vacating a trial is really an application of absolutely the last resort – hated by everyone and particularly judges.

Every year there are some cases regarding the possibility of adjournment of trials for various reasons.  There are sometimes legitimate reasons, for example illness, but certainly in recent years there has been a very firm emphasis that trials should not be adjourned unless it is absolutely necessary to do so.  What constitutes “absolutely necessary” is a difficult point.

In the recent case of Bilta (UK) Ltd & Ors v Tradition Financial Services Ltd , the Court of Appeal allowed an appeal against the decision to refuse an adjournment.  In that case, one of the witnesses was not available.  The claim which had been brought by liquidators including allegations of dishonesty made against a number of individuals one of whom was thought to be too ill to attend.  In fact, that particular individual was thought to be always in a position that they were unlikely to attend.  A Civil Evidence Act notice was served which is the usual way of dealing with such matters and the trial was listed for January of this year.

In an unusual turn of events however, the individual concerned seemed to have made an enormous improvement in health and it was thought that she was going to be fully recovered by September.  Therefore, an application was made to adjourn the trial and relist it for a time when she was likely to be well and available to give evidence.

At first instance, the judge refused that application.

The matter then went on an expedited basis to the Court of Appeal presumably so as not to lose any potential court date.  The guiding principle is in essence the interests of justice; whether a trial could go ahead and it would be fair in all of the circumstances.

This was an important witness who would be able to provide helpful material and possibly decisive information.  She was clearly more than a witness providing some minor evidence on a specific issue.  Her evidence was fundamental to the case.  There was, I must make clear, no concern about the validity of the medical information that was provided which does occasionally happen in other cases.  The Court of Appeal made clear that if refusing an adjournment would make the trial unfair, the adjournment should ordinarily be granted even if inconvenient unless that inconvenience was outweighed by injustice to the other party that they simply could not be compensated for.

In this particular matter there were allegations against this particular witness and she should have had an opportunity to present her case or argue against the case presented against her before a court decision at a trial could be made.

It should be said that the inability of an individual to attend is rarely a circumstance in which the court would adjourn a trial.  Again, in recent case in Naylor v University Hospitals of Leicester NHS Trust an application was made to adjourn was made on a number of grounds one of which was the unavailability of the particular barrister who had been dealing with the case throughout and the others being that the claimant had moved and new expert evidence needed to be obtained.

The judge made it clear that the non- availability of counsel came “nowhere near” providing a basis for adjourning a trial. It would rarely be the case that alternative counsel could not be found who would be able to present the claim appropriately particularly in this instance where both liability and causation were admitted.

Some concern was raised by the court in relation to the court timetable being agreed between the parties without having taken into account the move by the claimant and the need to update the accommodation and other expert reports to reflect this.  Nevertheless, it was simply a case of the court assuming that the claimant could get that evidence together and deal with the issues appropriately.

Therefore if you are seeking to adjourn a trial the following applies:-

1. You really must be a fundamental part of the claim or have evidence so fundamental that a Civil Evidence Act notice will not be sufficient.
2. A member of the legal team being unavailable or ill will not suffice.
3. A problem with the court timetable is rarely going to end well.  The fact is that unless it is not humanly possible, the court will assume that you will do everything you can to get all documents where they need to be in the appropriate form as soon as possible.
4. If you are in essence a defendant or someone against whom allegations are being made the likelihood is that the application will be successful and so it should because you have to have an opportunity to put your side of the case.

What will not work is assuming that Covid 19 and the need for a remote trial will be successful. Despite all the bizarre problems of the court IT systems over the years – judges and their clerks have performed miracles which means the rest of us have to rise to the challenge. That is perhaps the harder part.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.