Adjournment as Counsel / Advocate is Unwell

Author: Simon Hill
In: Article Published: Tuesday 08 February 2022

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Where a party's advocate, whether barrister/counsel or solicitor advocate, is ill and so cannot competently represent the party at a hearing, how does the Court determine an application by that party for an adjournment of the hearing?

This article will consider (after briefly considering the situation where a party or a party's witness is ill), the case of Chai v Peng [2015] EWCA Civ 790, where a party applied to adjourn a substantive appeal hearing on the basis that their (leading) barrister was ill.

General Approach to Applications to Adjourn a Hearing on Grounds of a Party/Witness Suffering Ill-health

Where a party or party's witness is ill, and the relevant party seeks an adjournment of an upcoming hearing, the approach the Court should take is a well established. A convenient summary of the position is provided by Adam Johnson QC, sitting as a deputy High Court Judge, in Financial Conduct Authority v Avacade Ltd (In Liquidation) (t/a Avacade Investment Options) [2020] EWHC 26 (Ch)('Avacade'), from paragraph 59[1].

Adjournment as Advocate Unwell

While the Avacade summary benefits from a  substantial body of caselaw behind it, conversely, there is a dreath of caselaw[2] on the situation where a party's advocate, whether barrister/counsel or solicitor advocate, is ill and so cannot competently represent the party at a hearing. Whether this is because such applications are rarely contested, or arise less frequently, is unclear. In any event, there is one reported case, which repays analysis. The case is Chai v Peng [2015] EWCA Civ 790 ('Chai'), a decision of McFarlane LJ sitting alone in the Court of Appeal. What was before him was an application to adjourn a full substantive appeal hearing; it was not an appeal against a decision from a lower court, on an application to adjourn a hearing due to an advocates ill-health (whether successful or unsuccessful). McFarlane LJ's decision was, in that sense, a decision at first instance; not on appeal.

In Chai, a husband and wife were involved in 'highly contested divorce proceedings' (paragraph 2). A decision had been made by a High Court Judge on jurisdiction in October 2014, and that decision had been appealed. The appeal was due to come on for the full substantive hearing on 12 July 2015. On 12 June 2015, so 1 month before the full substantive appeal hearing, McFarlane LJ heard the wife's application to adjourn the full appeal hearing on the basis that her leading counsel, a QC, who had '...been instructed throughout to act on behalf of the wife...', had '...suddenly become seriously ill and is not available to present the wife's case at the fixture in July' (paragraph 3). The application was '...for the current fixture to be vacated and replaced with the date in mid-October.' (paragraph 5).

It was not in dispute (i.e. there was no dispute of fact) that the QC had suffered the ill-health underlying the application. The Husband's counsel said 'The circumstances giving rise to this application are well known to the court and could not be more unfortunate.' (paragraph 12) and McFarlane LJ said that was '...a sentence with which I wholeheartedly agree.' (paragraph 13)

Court's Approach

McFarlane LJ said that the decision whether to refuse or acceded to the adjournment application '...really turns on the prejudice of one party or the other to be caused by the delay.' (paragraph 14). 

As part of this, McFarlane LJ looked at:

(1) the likely delay which would arise as a result of adjourning (the 'degree of delay' (paragraph 21)), and considered whether this was excessive (paragraph 21). 

(2) the ill barrister's prognosis and the certainty that he/she would be able to attend any adjourned hearing. In relation to the likely availability of the QC at the adjourned hearing, and his prognisis, McFarlane LJ said, at paragraph 9:

'...there is a need to be realistic about matters when dealing with important decisions such as the adjournment of this appeal: important for the parties generally, but important because of the costs' implications of the proceedings as a whole, and, indeed, the importance of achieving some finality in proceedings.'

(3) whether alternative counsel could replace the QC, in particular, whether the wife's junior counsel, or a (new) QC;

(4) the length of the proceedings already;

On the facts:

(1) The prognosis was that 'the condition he has is seemingly amenable to treatment and it is predicted by his treating physician (and by [the QC] himself) that he will be back at work and taking instructions to appear in court in September.' (paragraph 4). Further, it was said that 'The medical evidence and the confidence of [the QC] is to the effect that if the case is adjourned to October, he will be in court to present the wife's case.' (paragraph 5)

(2) the Court could accommodate the adjourned appeal hearing in the week of 19 October 2015. The delay was likely to be 3 or 4 months[3]), which he concluded was '...acceptable in the regrettable circumstances...' (pararaph 23);

(3) the proceedings had been 'running for over 2 years' (paragraph 9)

In conclusion, McFarlane LJ said, at paragraphs 20 to 22:

'If the appeal could not be accommodated by this court for some many months after the July date then my view might be different, partly because it would be possible to engage the services of another QC to take over in that timescale.

But the degree of delay is in my view not excessive, and there is a premium, rightly put, by both sides upon having the lead counsel that they have each instructed throughout present to present this all important appeal before the court.

On the basis of the confidence that the court is entitled to have as to [the QC's] recovery and his availability, I do not regard the arguments that [counsel for the Husband] has put forward as indicating that the prejudice to the husband would be greater than that to the wife of having to proceed either with an alternative silk, or, with respect to him, [junior counsel for the wife] presenting the case on his own. There is a quantitative difference between having the lead silk involved and the junior having to step up to the plate and present the case.'

Accordingly, McFarlane LJ acceded to the adjournment application (paragraph 23) and vacated the 12 July 2015 fixture, replacing the fixture with a listing in the week commencing 19 October 2015.

SIMON HILL © 2022

BARRISTER

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.

[1] In Financial Conduct Authority v Avacade Ltd (In Liquidation) (t/a Avacade Investment Options) [2020] EWHC 26 (Ch), Adam Johnson QC sitting as a deputy High Court Judge said, under the heading 'The proper approach and the authorities', from paragraph 59:

'59. A good starting point is Levy v Ellis-Carr [2012] EWHC 63 (Ch) in which Norris J gave the following guidance on the proper approach to the assessment of the medical evidence relied on in support of an adjourment application:

"Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion and what arrangements might be made (short of an adjournment) to accommodate the party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate."

60. The guidance given by Norris J has been approved in a number of later decisions, including by Lewison LJ in the Forresters Ketley v Brent [2012] EWCA (Civ) 324 at [26], and again by the Court of Appeal in GMC v Hayat [2018] EWCA (Civ) 2796 at [48].

61. In the Forresters Ketley case, Lewison LJ also said the following at [25] which is relevant in the circumstances of this case:

"Judges are often faced with late applications for adjournments by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing."

62. GMC v Hayat mentioned above also provides support for the proposition that, in considering the weight to be attached to a particular medical report, the court is entitled, indeed obliged, to look at it in light of the history and the other materials available to it. In that case, Lang J had allowed an appeal from a decision of the Medical Practitioners Tribunal on the basis that the tribunal had failed to adjourn proceedings against the appellant in light of a sick note he produced which advised that he was not fit for work.

63. Lang J's decision was overturned by the Court of Appeal. Coulson LJ at [45] said that Lang J appeared to conclude that, because the sick note post-dated earlier evidence of the appellant's condition, "it somehow trumped all that had gone before it". Coulson LJ said that was wrong in principle.

64. At [56] he then said:

"Finally, I consider that the Tribunal was entitled to weigh up the (inadequate) sick note against all of the other material available to them. This included not only the existing medical evidence (and the fact that the sick note was broadly consistent with that other evidence, and not contrary to it) but also the fact that [the appellant] had already made three unsuccessful applications to adjourn this hearing on entirely different grounds, each without success."

65. At [57], Coulson LJ said expressly that, as part of these wider considerations, there was the question of the public interest. He said:

"Any adjournment causes extensive disruption and inconvenience and wastes huge amounts of costs. That would have been particularly acute here, given the number of witnesses and the length of the hearing. Those again were relevant factors which the Tribunal was entitled to consider when arriving at its conclusion."

66. It is often said that the decision whether to adjourn a trial is a case management one involving the exercise of a discretion. On the other hand, such decisions have been said to engage basic questions of fairness. So, for example, in Teinaz v London Borough of Wandsworth [2002] IRLR 721 Peter Gibson LJ said as follows at [21]:

"A litigant whose presence is needed for the fair trial of the 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 and 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."

67. Later in the same judgment at [22], after referring to the possibility of the court giving directions for the filing of further medical evidence in doubtful cases, Peter Gibson LJ went on to say the following:

"All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved."

68. The later case of Mohun-Smith v TBO Investments Limited [2016] EWCA (Civ) 403 emphasised that there is a material and important distinction between an application for an adjournment of trial and an application under CPR rule 39.3 to set aside a judgment entered in default because of the non-attendance of a party. The decision indicates that the court should not in general adopt too rigorous an approach to the question of whether a good reason has been shown for non-attendance in the context of an application under CPR rule 39.3 , but that a rigorous approach is justified in the context of an adjournment application.

69. Lord Dyson MR explained why at paragraph [26]:

"If the court refuses an adjournment, there will usually be a trial and a decision on the merits, although the unsuccessful applicant will be at a disadvantage, possibly a huge disadvantage, by reason of the absence of the witness or the party himself. Despite their absence and depending on the circumstances, it may still be possible for the disadvantaged claimant to prove the claim or the disadvantaged defendant to resist it. I accept that in some cases the refusal of an adjournment will almost inevitably lead to the unsuccessful applicant losing at trial. That is a factor that must be borne in mind when the court exercises its discretion in deciding whether or not to grant an adjournment. But if the application to set aside a judgment under rule 39.3(3) fails, the applicant will have had no opportunity whatsoever to have an adjudication by the court on the merits. The difference between an application under rule 39.3(3) and an application for an adjournment of the trial is important. Although it has not been articulated as the justification for generally adopting a more draconian approach to the application for an adjournment than to an application under rule 39.3(5) , in my view it does justify such a distinction."

70. Some further useful commentary was provided by Mr Warby J in a later case involving an application by a litigant in person, Decker v Hopcraft [2015] EWHC 1170 QB at paragraphs [21] to [31]. I draw attention in particular to the following paragraphs from paragraphs [27] and [28]:

"27. the question of whether the litigant can or cannot participate in the hearing effectively does not always have a straightforward yes or no answer. There may be reasonable accommodations that can be made to enable effective participation. The court is familiar with the need to take this approach, in particular with vulnerable witnesses in criminal cases. A similar approach may enable a litigant in poor health to participate adequately in civil litigation. But the court needs evidence in order to assess whether this can be done or not and, if it can, how.

"28. the question of whether effective participation is possible depends not only on the medical condition of the applicant for an adjournment, but also, and perhaps critically, on the nature of the hearing, the nature of the issues before the court and what role the party concerned is called on to undertake. If the issues are straightforward and their merits have already been debated in correspondence, or on previous occasions, or both there may be little more that can be usefully be said. If the issues are more complex but the party concerned is capable, financially and otherwise, of instructing legal representatives in his or her place and of giving them adequate instructions their own ill health may be of little or no consequence. All depends on the circumstances as assessed by the court on the evidence put before it."

71. In Solanki v Intercity Telecom and Another [2018] EWCA (Civ) 101, [2018] 1 Costs LR 103 , the Court of Appeal allowed an appeal against a decision refusing an adjournment. The medical evidence relied on was a letter from a doctor indicating symptoms consistent with depression, and reporting an assessment by the practice therapist that the appellant was suffering from "moderately severe depression" and "severe anxiety". On that basis, the doctor expressed his concerns as to whether the appellant was medically fit to be able to represent himself in court at the present time. The appeal was allowed because the judge failed to give adequate reasons for disregarding the medical evidence.

72. As Gloster LJ put it at [40], the judge's view, based apparently on his own observations of the appellant in court, was that the appellant was "putting on an act", but that was no proper basis for disregarding the professional medical evidence put forward. There was evidence that the appellant was plainly ill and no evidence to suggest that the illness was contrived, see per Gloster LJ at [41].

73. More recently, in Maitland-Hudson v SRA [2019] EWHC 67 (Admin) , the Divisional Court said as follows at [73] to [76] under the heading "Right to a fair trial":

"73. The right to a fair trial is enshrined under the common law and Article 6 . The content of procedural fairness is infinitely flexible. It is not possible to lay down rigid rules to be applied identically in every situation. Whilst there is a core minimum of process required, involving notice and some form of hearing, what is necessary to meet the requirements for a fair trial in any given case will depend on the specific facts, including for example the nature of the proceedings, the stage reached by the proceedings and the overall procedural history. So, for example, a 'fair' hearing does not necessarily mean that there must be an opportunity to be heard orally.

"74. The ability of a respondent to participate effectively in regulatory proceedings is a fundamental element of the right to a fair trial. It is to be assessed in the context of the particular proceedings (see for example R v Marcantonio and Chitolie [2016] EWCA (Crim) 14 at 7) …The courts will interfere to protect it when necessary: see for example Anastasi v Police Appeal Tribunal [2015] EWHC 4156 at 38 and Brabazon-Drenning v UKCC [2001] HRLR 6 where Elias LJ stated at [18] and [19]:

"'Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands to go on with a hearing where there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process …She clearly was unable to attend this hearing because she was too ill to do so. In those circumstances, I do not think there were any overriding public interest considerations which should have deprived her of her basic rights to be present when the case was put against her, and to be in a position where she could either cross-examine herself or have a representative with whom she could communicate cross-examine on her behalf. It was a breach both of the principles of natural justice and Article 6 .'

"75. Equally in R (on the application of Gatawa) v Nursing and Midwifery Council [2013] EWHC 3435 (Admin) a decision not to adjourn a disciplinary hearing to allow more time for a lay representative to prepare on behalf of a nurse, who was suffering from mental illness and was absent, was held not to be have been procedurally unfair when her representative had been given many opportunities to ask for more time.

"76. Thus, refusal of an adjournment to a party unable to attend the hearing, if wrongful, may be tantamount to a denial of justice. Context is everything."'

[2] In Chai v Peng [2015] EWCA Civ 790, McFarlane LJ did not cite any authorities in his judgment. Further, there have been no cases subsequently, in which Chai v Peng [2015] EWCA Civ 790 has been cited (according to Westlaw, Lexis and Bailii).

[3] The calculation was somewhat more complicated than simply working out the time gap between: (1) 12 July 2015; and (2) c.19 October 2015. McFarlane LJ said, at paragraphs 15 to 17:

'There is plainly the delay between July and October in the hearing of the appeal and, if the husband is successful, that is a delay in finalising his involvement in proceedings in England and Wales.

The reality, because of the intervention of the long vacation, is that if the case is heard in July it is unlikely that the parties would have the judgments of the court by the end of term, some two weeks later. It is therefore to be contemplated that the court's judgments would not be available until early October. But probably in time for the hearing booked before Bodey J in the week, as it happens, of 19 October.

If the case is adjourned to be heard in the week on 19 October, obviously the hearing before Bodey J would have to be vacated. [Counsel for the Husband] tells me, and I readily accept, that the earliest it seems that could be relisted is some time in mid-February. So the true delay, if the appeal is unsuccessful, or the limit of the delay if the appeal is unsuccessful, is February, as opposed to a hearing before Bodey J in October.'