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A triple appeal granted and no denial of justice or penal costs: adjourning a trial on health grounds

In Solanki v Intercity Telecom Ltd and others, the defendant applied for an adjournment on health grounds. This was refused. The trial went ahead in his absence. The defence was struck out. The claimant was awarded damages of over £290,000 and the defendant was ordered to pay the claimant’s costs of just over £83,500. The defendant applied for the judgment to be set aside which was also refused.

The Court of Appeal considered appeals against the:

  • Refusal to adjourn a trial on health grounds.
  • Refusal to set aside judgment under CPR 39.3(3) on the basis that the appellant was medically unfit to attend trial.
  • Summary assessment of costs in respect of contempt proceedings on the grounds that the costs order was disproportionate.

The appeal was allowed on all grounds. Gloster LJ directed that there be a new trial and that the quantum of costs be determined by a costs judge.

Adjournment of trial

Gloster LJ set out that, in exercising its discretion as to whether or not to adjourn a trial, the court had to be satisfied that the decision to refuse an adjournment was not unfair; particularly where the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) is at stake. Although a discretionary matter, “some adjournments must be granted if not to do so amounts to a denial of justice”. Care must be taken to ensure that no injustice was caused to the party seeking the adjournment. The court is, however, entitled to be satisfied that the reason for the adjournment is genuine. If there is some evidence, particularly from a qualified person, that the litigant has been advised not to attend, but where the court considers the evidence to be insufficient or has concerns, it has a discretion as to whether or not to give a direction to enable those doubts to be resolved.

The main issue here was that the judge decided to discount the letter from the GP, “apparently based on his observation of the appellant in court,” which she said, “was no substitute for the professional medical evidence provided by the general practitioner which clearly demonstrated that the appellant had a genuine history of depression and mental problems.” There was no evidence that the illness was contrived, although this was clearly HHJ Simon Brown QC’s view as he said, “these are attempts to avoid coming to court.”. Gloster LJ highlighted that the consequences of the refusal to adjourn were particularly severe for the defendant. She referred to such a situation presenting difficult problems, “requiring practical solutions if justice is to be achieved.”

Refusal to set aside judgment

HHJ Simon Brown QC refused the application to set aside the judgment on the papers. No satisfactory reasons were given for the refusal.

CPR 39 sets out the criteria where the court may set aside judgment: the application should be made promptly, there was good reason not to attend trial and there is a reasonable prospect of success at trial. Gloster LJ said that, “if each of those three hurdles is crossed, it seems to me that it would be a very exceptional case where the court did not set aside the order”. She went on to stress that an appellant court should only interfere “if satisfied that the Judge was wrong.” The court needs to consider the overriding objective to ensure that cases are dealt with justly and ensure the right to a fair trial is not denied, particularly where there is a reasonable prospect of success. The court should not adopt a very rigorous approach as to whether the litigant has shown a good reason for not attending (as set out in the guidance set out by Lord Neuberger MR in Bank of Scotland plc v Pereira). On analysis, she found that the judge had been wrong in principle, as following the Pereira guidance, “he could not reasonably have rejected the doctor’s opinion.” It was held that the defendant was not given the opportunity of a fair trial and the case had not been dealt with justly. She was categoric in her view that the judge “was wrong in all the circumstances not to have set aside his judgment”.

Summary assessment of costs

The Court of Appeal held that the award of just over £83,500 in costs (in respect of the committal proceedings for contempt) had breached the basic principle that such costs “should be reasonable and proportionate, and not penal.” The judge had not adequately considered whether the costs were proportionate or justified in the circumstances. Gloster LJ ordered that the costs be determined by detailed assessment after the retrial.

Reasoning/practical implications

The defendant’s conduct and how he came across in court may well have been why HHJ Simon Brown QC took the decisions he did. However, as Gloster LJ set out, “it was unfortunate, to say the least, that he gave no reason for his refusal.” No doubt judges will have taken heed of Gloster LJ’s comment going forward!

On the back of this case, it seems likely that the court will carefully consider any application to adjourn a trial on health grounds to ensure there is no denial of justice. The courts may well now be more inclined to grant an adjournment, or at least give a direction for further medical information to relieve any doubts over any inadequacy in the evidence provided. However, Gloster LJ made it clear that this was a rare case.

Applicants seeking an adjournment on health grounds or making an application to set aside a judgment should ensure that they bear this case in mind. The court made the distinction between the correct approach when considering adjourning a trial as opposed to setting aside a judgment. The hurdle is higher for seeking an adjournment whereas the court should not adopt a too rigorous approach to the reason why the applicant did not attend trial when considering an application to set a judgment aside. The issue being that the applicant will be denied any adjudication of his or her case by the court if his or her application to set a judgment aside is refused.

The case also helpfully reiterates that whether costs have been reasonably incurred and are proportionate should always be considered.

Boodle Hatfield Nikki Yates

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