Requests to adjourn a trial

When a party makes a request to adjourn a trial on medical grounds it can be difficult to determine whether it is genuine or simply a delaying tactic. This case gives clear guidance on the principles the court will adopt when considering whether to agree to an adjournment, lays out the type of medical evidence that will be required and the possible ways in which a party can be accommodated despite their illness.

The background

The claim alleged against Mr Jaffery was that, as an employee of the claimant, the Governor and Company of the Bank of Ireland (“the Bank”) Mr Jaffery had made secret profits and put himself in a position of conflict of interest and failed to disclose his wrongdoing and also accepted bribes.  The allegation centred on Mr Jaffery’s relationship with the second defendant, Mr Gill who was involved with the Berkeley group of companies to which the Bank had lent millions of pounds.

Mr Jaffery and Mr Gill had made a request for an adjournment initially in January this year, but Mr Justice Mann had refused this application on the basis that they were the authors of their own misfortune although he did move the trial back for a month.  Subsequently, the second defendant made a request for a further adjournment on the basis of his wife’s pregnancy and Mr Justice Mann put the trial back to March although refusing the substantive application on the basis that the Bank had agreed to pay for professional care of Mr Gill’s young children. 

Mr Jaffery now wished to adjourn the trial scheduled in March on the basis that he was in hospital. In order to decide whether to adjourn, the court made an order stating that it was not appropriate for the court to order Mr Jaffery to submit to a medical examination, but it could direct that the application be adjourned for the court to direct that unless Mr Jaffery submitted to an examination in hospital or elsewhere by one or two of the independent doctors instructed by the Bank then his application for an adjournment was likely to be rejected.  The court was concerned to ascertain whether Mr Jaffery was truly ill or simply delaying matters.

The decision

As Judge Vos explained, the question of whether to agree to an adjournment is one for the discretion of the court and requires the need for proper evidence upon which that discretion can be exercised and in particular proper medical evidence. He relied on two recent authorities.  In the case of Mark Levy (Trustee in Bankruptcy of Ellis-Carr) v Ellis-Carr, the Judge had noted that those parties that fail to attend in the hope of securing an adjournment are deeply mistaken.   It is necessary to have regard to the overriding objective.  The evidence should:

  • Identify the party’s medical attendant and give details of his familiarity with the patient’s medical condition; and
  • Give an opinion concerning the participation in the trial process, provide a reasoned prognosis and give the court some confidence that it is an independent opinion. 

The court can then decide how much weight to give to that opinion and what (short of an adjournment) arrangements might be made to accommodate a party’s difficulties arrangement.

In the second case of Forrester Ketley v Brent, the Court of Appeal noted that an adjournment is not simply there for the asking.  The litigant in person in that case was suffering from stress related to the litigation.  The stress was genuine, he was physically fit to attend the hearing, but emotionally vulnerable to stress.  In the case where the applicant complains of stress related illness an adjournment, it is unlikely to serve any useful purpose because the stress will simply recur on an adjourned basis.

In this case, the Judge noted that Mr Jaffery has been communicating with the court and with the Bank over a lengthy period of time in the most coherent of fashion.  He was plainly capable of expressing this point of view, taking decisions and advancing his case.  The Judge therefore concluded that there was no medical reason apart from stress preventing him from participating in the trial and it was unlikely to abate by adjourning the trial.

For the purposes of the application the Judge assumed that Mr Jaffery had a properly arguable defence.  He also considered the balance of justice and the overriding objective.  It was clear that massive costs had already been expended, the witnesses were ready, counsel’s availability was assured only for the 12 day estimated length of the trial and the trial had already been adjourned on two occasions.

It may be that Mr Jaffery was an inpatient but he could have been examined by a psychiatrist that afternoon and be out of hospital that night.  He was not incarcerated. Bearing in mind the trial was listed for 12 days, Mr Jaffery could come to court to present his defence and even to give his evidence.  These procedures would enable Mr Jaffery to participate in the trial even bearing in mind his medical condition and the stress caused by the litigation.  As such the application for the adjournment was refused.

Comment

This case confirms that where a party alleges that he has a medical condition the court will consider the application based on the overriding objective and the medical evidence.  A decision not to turn up in the hope that it will secure an adjournment is not enough and any party that does this will take the risk that the trial will proceed in their absence.  A court may require an independent medical expert (not merely an expert appointed by the party), who can attest to the party’s specific medical condition and enlighten the court about the reason why the party is prevented from attending trial. All too often a party may hope to delay matters and try to do this by claiming an adjournment on medical grounds.  This case along with the two authorities referred now should assist the court in deciding whether to accede to a request, how to accommodate the parties and filter out those genuine cases of need from those incalcitrant parties determined to delay matters without reason.

The Governor and Company of the Bank of Ireland v Jaffery & Gill [2012] EWHC 734