Adequate medical evidence - to explain Court non-attendance

A party may not be able to attend a hearing, or may need to explain, why a party did not attend a hearing that has taken place. One potential reason is that the 'to be absent'/'was absent' party, suffers or suffered (when the hearing took place) from a medical condition/ailment, which prevents, or (as the case may be) prevented, that party from attending. That is to say: the party was unfit on medical grounds to attend the trial. Where this is the case:

(1) prospective - the 'to be absent' party may apply, in advance of the hearing, to adjourn the (future) hearing, on the basis that he/she suffers from a relevant medical condition/ailment, which (somehow) prevents that party from attending the hearing; or 

(2) retrospective - a 'was absent' party may apply, after the trial has taken place, under CPR 39.3 (a 'r.39.3 Application'), for an order, setting aside the judgment/order made at that trial. The reason for non-attendance, being that he suffered from a relevant medical condition/ailment, which (somehow) prevented that party from attending the trial;

In either secenario, it will not simply be sufficient/adequate, for the applicant to assert, without more, that he/she suffers/suffered from the medical condition/ailment in question. The Court will require evidence to corroborate that assertion.

This article will consider what medical evidence is needed, to corroborate the assertion. To put it another way, this article will consider what medical evidence, the Court has stipulated it would need, enable it to evaluate, and be persuaded, that the applicant did truly suffer from the medical condition/ailment asserted.

The Court's requirement, in terms of medical evience, will be considered in light of

(1) Levy v Ellis-Carr [2012] EWHC 63 (Ch) ('Levy'), High Court (Norris J) on 23.1.12; 

(2) Forresters Ketley v Brent [2012] EWCA Civ 324 ('Forresters'), Court of Appeal (Longmore LJ; Lewison LJ) on 21.2.12; 

(3) Decker v Hopcraft [2015] EWHC 1170 QB ('Decker'), High Court (Warby J) on 30.4.15;

(4) GMC v Hayat [2018] EWCA (Civ) 2796; (2019) 167 B.M.L.R. 78 ('Hayat'), Court of Appeal (McCombe LJ; Moylan LJ; Coulson LJ) on 13.12.18;

(5) Bruce v Wychavon DC [2023] EWCA Civ 1389 ('Bruce'), Court of Appeal (Newey LJ; Coulson LJ; Snowden LJ) on 24.11.23;

(6) Shinebrook Ltd v Revenue and Customs Commissioners [2026] UKFTT 602 (TC) ('Shinebrook'), First-tier Tribunal (Tax Chamber) (Judge Natsai Manyarara; Gill Hunter) on 16.4.26;

Shinebrook involved an application, at the start of a hearing, to adjourn, under the r.5 of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 SI 2009/273[1].

(7) Hoarean v Read [2026] EWHC 763 (Ch), High Court (Rajah J) on 23.3.26[2];

It may be helpful to touch on the discretion the Court has, to adjourn a hearing. 

TWO SITUATIONS 

Prospective - Discetion to grant an adjournment for medical reasons 

In Forresters, Lewison LJ (with whom Longmore LJ agreed) referred to an objection raised, against a first instance judge's decision not to adjourn a hearing, on the basis the applicant for the adjournment, had been 'unwell and unable to attend' (paragraph 25). Lewison LJ said, at paragraph 25:

'Whether to adjourn a hearing is a matter of discretion for the first-instance judge....Judges are often faced with late applications for adjournment by litigants in person on medical grounds. An adjournment is not simply there for the asking.'

Retrospective - r.39.3 Application

One of the requirement for such an r.39.3 Application, is that the applicant had 'a good reason for not attending the trial' (r.39.5(b))[5]. 

A good reason for not attending the trial, might be based on the applicant having suffered from a medical condition/ailment, which prevented him from attending the trial. 

Prospective vs retrospective 

It might be thought that the same test (same 'height of the hurdle') for apply to both the prospective application, and the retrospective application. That is not the case. In Shinebrook, the FTT explained, at paragraphs 90 and 91:

'The case of Mohun-Smith v TBO Investments Ltd [2016] EWCA (Civ) 403 ('Mohun-Smith') emphasised that there is a material and important distinction between an application for an adjournment of trial, and an application 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 to set aside a decision, but that a rigorous approach is justified in the context of an adjournment application. Lord Dyson MR explained why, at [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."

As a general rule, a good reason will have to be demonstrated in order to secure an adjournment. There are strong practical and case management reasons for this, particularly in the contemporary litigation culture with its emphasis on efficiency and expedition.'

POINT 

Stress-related illness

A short point can be made immediately.

One 'type' of illness, which might seemingly prevent someone from attending Court, is a stress-related illness - stress caused by the litigation and the prospect of attending the hearing. In Forresters, Lewison LJ went on to considered this. At paragraph 25 of Forresters, Lewison LJ said:

'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.'

Lewison LJ then set out an extract from Levy - an extract[3] Lewison LJ said he agreed with. On the facts in Forresters, the appeal, based on stress-related illness not resulting in an adjournment, failed[4].

CASE LAW 

Levy 

In Levy, the facts of which are set out in a footnote[5a], Norris J, heard an appeal against (amongst other things) a first instance judge's decision to go ahead with a insolvency hearing (on 24.5.11). The Ground of Appeal was that the first instance judge (a Registrar) had gone ahead with the hearing 'when the court had been informed that the Appellant was medically unfit to attend court' (paragraph 26(b)). On the issue, Norris J said, at paragraphs 33 to 38[5b]:

'Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge. The decision must of course be a principled one. The judge will want to have in mind CPR 1 and (to the degree appropriate) any relevant judicial guidance (such as that of Coulson J Fitzroy or Neuberger J in Fox v Graham (“Times” 3 Aug 2001 and Lexis). But the party who fails to attend either in person or through a representative to assist the judge in making that principled decision cannot complain too loudly if, in the exercise of the discretion, some factor might have been given greater weight. For my own part, bearing in mind the material upon which and the circumstances in which decisions about adjournments fall to be made (and in particular because the decision must be reached quickly lest it occupy the time listed for the hearing of the substantive matter and thereby in practice give a party relief to which he is not justly entitled) I do not think an appeal court should be overcritical of the language in which the decision about an adjournment has been expressed by a conscientious judge. An experienced judge may not always articulate all of the factors which have borne upon the decision. That is not an encouragement to laxity: it is intended as a recognition of the realities of busy lists.

In the instant case the Appellant has to demonstrate that on the material then before her the Registrar exercised her discretion wrongly as a matter of law, and he has also to demonstrate that in fact he had a good reason not to attend the trial.

In my judgment there were ample grounds upon which the Registrar could properly refuse the adjournment (whether she expressly referred to them or not). 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.

Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. 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 a 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.

The Appellant complains that the failure to grant the adjournment is a breach of his human rights. The complaint is misconceived. The Appellant's right to a fair trial means that he must have a reasonable opportunity to put his case. He had that right on 9 February 2011 (but asked the Court to postpone it). He was urged to exercise that right by the trustee's solicitors on 23rd May 2011: but he and his legal representatives chose not to avail themselves of it.

This ground of appeal fails.'

Forresters

In Forresters, Lewison LJ said, at paragraph 26:

'In Levi v Ellis-Carr [2012] EWHC 63 (Ch), Norris J set out his approach to medical evidence, in terms with which I agree. He said of the evidence in that case:

“In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. 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 a 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).”'

Decker 

Under the heading 'Principles', Warby J said in Decker, at paragraphs 21 to 30:

'The decision whether to adjourn a hearing, and the decision whether to proceed with a hearing in the absence of a party, are both case management decisions. The court is required to exercise a discretion, in accordance with the overriding objective, in the light of the particular circumstances of the individual case. The authorities provide valuable guidance, however.

A court faced with an application to adjourn on medical grounds made for the first time by a litigant in person should be hesitant to refuse the application (Fox v Graham Group Ltd, The Times, 3 August 2001 per Neuberger J, as he then was). This, however, is subject to a number of qualifications. I focus on those which seem to be of particular relevance in the present case.

First, the decision is always one for the court to make, and not one that can be forced upon it. As Norris J observed in Levy v Ellis-Carr [2012] EWHC 63 at [32]:

“Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge.”

Secondly, the court must scrutinise carefully the evidence relied on in support of the application. In Levy v Ellis-Carr at [36] Norris J said this of the evidence that is required:-

“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 a 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).”

Norris J's approach in Levy v Ellis-Carr was expressly approved by Lewison LJ in Forrester Ketley v Brent [2012] EWCA Civ 324 [26], upholding a decision of Morgan J to dismiss an application to adjourn on medical grounds. It was followed by Vos J (as he then was) in refusing an application to adjourn the trial in Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 734 (Ch) [49].

In the context of what amounts to proper medical evidence it is pertinent to note two points made by Vos J in the Bank of Ireland case. At [19], referring to a GP's letter running to some 11 lines which confirmed that the defendant had been signed off work for three weeks, he said this: “It is important to note that a person's inability to work at a particular job is not necessarily an indication of his inability to attend court to deal with legal proceedings. It may be but it may also not be.” At [58] Vos J indicated that he took into account the contents of the defendant's litigation correspondence, observing that he “has been communicating with the court and with the claimants over a lengthy period in the most coherent fashion. He is plainly perfectly capable of expressing his point of view, taking decisions and advancing his case”.

The third main qualification to Neuberger J's observations in Fox v Graham is one that is implicit, if not explicit in what Norris J said in Levy v Ellis-Carr: 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.

Fourthly, 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 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.

The fifth point that may be of significance here is that, sometimes, it may appear to the court at the outset or after hearing some at least of the rival arguments that in truth the matter before it is one on which one or other side is bound to succeed. 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. Thus, in Boyd & Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516 the Court of Appeal proceeded with the hearing of an appeal on the basis that it would refuse an adjournment if it concluded, as it did, that the appeal had no real prospect of success. This appears consistent with the conclusions of Neuberger J in Fox v Graham that where the court refuses a litigant in person an adjournment it may proceed in his absence if satisfied either (a) that it is right to grant the applicant the relief sought or (b) that the application is plainly hopeless.

I accept the point ... that when considering an adjournment application the court's approach should to an extent be affected by whether the matter involves applications of a case management nature, or final determinations on the merits such as an order striking out a statement of case or part of it, where Article 6 of the Convention is engaged. The court will need to be more cautious in cases failing within the second category. Nonetheless, the factors I have identified above are relevant in both contexts.'

Hayat

In Hayat, under the heading 'Grounds 1 & 4: the Correct Approach to Medical Evidence Relied on in Support of An Application to Adjourn' and subheading 'The Law', Coulson LJ (with whom Moylan LJ and McCombe LJ agreed) said,

(1) under sub-subheading 'The Required Standard of Medical Evidence', at paragraphs 37 to 41:

'There are a number of authorities dealing with the nature and standard of the evidence necessary to found an application for an adjournment on the grounds of ill health. There must be evidence that the individual is unfit to participate in the hearing: see Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 724 (Ch) at [19]. That evidence must identify with proper particularity the individual's condition and explain why that condition prevents their participation in the hearing: see Levy v Ellis Carr [2012] EWHC 63 (Ch) at [36]. Moreover, that evidence should be unchallenged: see BrabazonDrenning at [18].

Of particular importance in this context is the passage from the judgment of Norris J in Levy v Carr Ellis, which deals in detail with what sort of evidence is necessary. He said:

"36. Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. 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 a 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."

This passage was expressly approved by this court in Forrester Ketley v Brent & Another [2012] EWCA Civ 324 at [26]. In the same judgment, Lewison LJ dealt with the width of the judge's discretion when considering the grant of an adjournment:

"25. His second objection is that Morgan J should have adjourned the hearing on 10 March because Mr Brent was unwell and unable to attend. Whether to adjourn a hearing is a matter of discretion for the first-instance judge. This court will only interfere with a judge's exercise of discretion if the judge has taken into account irrelevant matters, ignored relevant matters or made a mistake of principle. Judges are often faced with late applications for adjournment 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."

In addition, in Mohun-Smith & Another v TBO Investments Limited [2016] 1 WLR 2919, Lord Dyson MR pointed out the differences between the less rigorous approach applicable to an application under r.39.3(3) and the more rigorous test required by an application to adjourn and, in relation to the standard of medical evidence required for the latter, he said:

"Nothing that I say in this judgment should be interpreted as casting doubt on the guidance given in the Levy case. Generally, the court should adopt a rigorous approach to scrutinising the evidence adduced in support of an application for an adjournment on the grounds that a party or witness is unfit on medical grounds to attend the trial."

This court has said repeatedly that a pro-forma sick note (of the kind provided here) may well be insufficient to justify nonattendance at a hearing, particularly if it refers only to an unfitness to attend work. Thus, in Andreou v The Lord Chancellor's Department (22 July 2002), Peter Gibson LJ at [41] said:

"The fact that a person is certified on medical grounds is not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner."

In similar vein, at [31] of her judgment in Emojevbe v Secretary of State for Transport [2017] EWCA Civ 934, King LJ said:

"iii) A pro-forma fit [sick] note, without more, may well be insufficient to found either a successful application for an adjournment at first instance or even an application under CPR 39.3(3). In considering whether that is the case, the court would undoubtedly have in mind the pressure under which GPs are working and the difficulties which may be faced by a litigant in person who, without the authority of a solicitor's letter may face considerable difficulties in obtaining a report containing more detailed information that the bald details found on a fit [sick] note. Equally on the other side of the coin, the court will have in mind the frequency with which late, unmeritorious applications for an adjournment are made."'

(2) under sub-subheading 'Further Enquiries' at paragraphs 42 and 43:

'The Tribunal has a discretion to conduct further enquiries if the medical evidence does not meet the requirements noted above. Teinaz v Wandsworth London Borough Council [2012] EWCA Civ 1040 makes plain that this is a discretion, not a duty. The courts have generally supported tribunals who have refused to adjourn hearings when presented with medical evidence that was inadequate or insufficient: see Forrester Ketley, by way of example. The onus remains on the individual to engage with the Tribunal and the process, and "a culture of adjournment is to be deprecated": see Adeogba at [61] where, in addition, at [59], Sir Brian Leveson expressly rejected the suggestion that the Tribunal should have made its own further enquiries. Those passages are set out at paragraph 41 above.

Furthermore, it seems clear that, if a Tribunal is being criticised for not undertaking further enquiries into the medical evidence, the complainant must be able to demonstrate that those further enquiries would have been material and would have been likely to have led to a different decision. In other words, the alleged failure must be material: see Fenwick v Camden and Islington HACA (unreported) 18 April 2000 at [17] – [18]. This was reiterated by Henderson LJ in Terry Simou v Michael Salliss & Another [2017] EWCA Civ 312, where he said:

"60. Mr Collings also rightly accepted that, even if there were a serious procedural irregularity, this court would only allow the appeal and order a retrial if satisfied that the decision of the judge was "unjust": see CPR rule 52.21(3)(b) (previously rule 52.11(3)(b)) and Hayes v Transco Plc [2003] EWCA Civ 1261 at [14] per Clarke LJ. Whether or not the decision is unjust "will depend on all the circumstances of the case": ibid."'

On the facts in Hayat, the first instance tribunal's decision to continue with a hearing: (a) in the absence of Dr Hayat; and (b) in light of certain medical evidence in respect to Dr Hayat, was upheld at a second appeal (paragraphs 59  and 76). The first appeal decision of Laing J was overturned, for 7 reasons[5c].

A few points can be extracted (for the avoidance of doubt, not all of the 7 reasons given, are quoted below):

(1) 'First, at [52] Lang J appeared to conclude that, because the sick note post-dated the evidence of Dr Bright and Dr Cunnington, it somehow trumped all that had gone before it. That was wrong in principle; the relevance of the sick note depended on its contents, not its date. Any decision which justifies an adjournment simply on the grounds of timing or date runs the obvious risk of encouraging a culture of adjournment, without regard to the detail of the medical evidence. Lang J compounded this error by saying at [53] that, applying the authorities, evidence of the kind set out in the sick note "ought generally to result in an adjournment". That is incorrect: as I have explained in paragraphs 34 – 36 above, that is manifestly not the approach set out in Adeogba.' (paragraph 45)

(2) 'Secondly, the sick note did not say that Dr Hayat was unfit to participate in the hearing. Lang J wrongly equated the statement in the sick note that he could not work with a statement that he could not participate in the hearing, contrary to the principles noted in Andreou and Emojevbe (paragraph 41 above). There was no medical basis for that conclusion and no consideration in the sick note of how the Tribunal might have accommodated Dr Hayat and any symptoms he might have had, or how and why such accommodation was impossible.' (paragraph 46)

Coulson LJ later identified '...the basic principle that a pro-forma sick note may well be insufficient to excuse attendance at a hearing if it does not say as much...' (paragraph 47)

(3) showing the continued importantce of the criteria identified in Levy, Coulson LJ said, at paragraph 48:

'More generally, I consider that the sick note was wholly insufficient to warrant an adjournment. It failed to meet the Levy v Carr Ellis test (paragraph 38 above) in any respect. It did not identify who prepared it, although there was a signature. It did not explain what Dr Hayat's medical condition was or how and why any particular features of that condition meant that he was unable to take part in the hearing. There was no prognosis. There was nothing about the pro-forma sick note which could have allowed the Tribunal 'to conclude with any confidence that what was being expressed was an independent opinion after a proper examination'. In my view, Mr Dunlop was right to say that it failed every element of the analysis required.' (paragraph 48)

(4) 'Fifthly, the judge was wrong at [50] and again at [54] to suggest that, in some way, because the sick note had given rise to an arguable case that there should be an adjournment on the grounds of ill-health, it was then up to the Tribunal to carry out further investigations. That was incorrect in principle. The onus was always on Dr Hayat, not the Tribunal: see the authorities at paragraph 42 above. What is more, Dr Hayat was or should have been acutely aware of that: he had been told as much by the Tribunal ... and by the GMC...

In any event, if there was anything in the suggestion that the Tribunal failed to carry out the necessary further investigations, it could only be because such further investigations would have yielded better evidence which would have met the Levy v Carr Ellis test. But there was no evidence before Lang J, or before us, that any further investigations by the Tribunal into Dr Hayat's medical condition would have made any difference at all. So even if there was a failure it was not material: see paragraph 48 above.

... In seeking to appeal the Tribunal's decision he did not at any stage suggest that, if the Tribunal had undertaken its own enquiries, they would have discovered additional medical information that would have demonstrated to them that it was inappropriate to continue in his absence. He has not done that, choosing instead to stand or fall on the terms of the sick note alone.' (paragraphs 52 to 54)

(5) '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 Dr Hayat had already made three unsuccessful applications to adjourn this hearing on entirely different grounds, each without success.

In addition, as part of these wider considerations, there was also the question of the public interest...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.

... I accept ... that these wider considerations also included the potential consequences for Dr Hayat if the matter went ahead in his absence. But, since there was no medical evidence to persuade the Tribunal that his absence was involuntary, that was of little weight. Moreover, I consider that the consequences of non-attendance were self-evident: they did not need setting out in the determination of a specialist tribunal.' (paragraphs 56 to 58)

Coulson LJ concluded 'The Tribunal was entitled to take into account all it knew, and put the sick note in the context of the other medical evidence, and the case overall.' (paragraph 59)

Bruce

In Bruce, Coulson LJ (with whom Snowden LJ and Newey LJ agreed) said, at paragraph 26:

'There is a good deal of authority concerned with what may constitute adequate medical evidence, in circumstances where that is proffered as the good reason for the non-attendance. The most useful guidance is set out by Norris J in Levy v EllisCarr [2012] EWHC 63 (Ch) at [36], where he said:

"…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 a 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)." (My emphasis)

That approach was expressly endorsed at [26] of the judgment of Lewison LJ in the subsequent case of Forresters Ketley v Brent [2012] EWCA Civ 324.'

Typical 'tick box' sick note

Later, Coulson LJ, at paragraph 41, referred to the typical 'tick box sick note', and said:

'...I am aware that all too often, parties seek to justify their non-attendance at court by reference to the sort of "tick box" sick note used here. The first difficulty with such documents is that they do not indicate whether the party seeking to rely on them was even seen by a doctor. If they were not seen, they are simply the doctor's record of the party's self-reported condition, and therefore add little.

'unfit for work' sick note vs 'unfit to attend court'

Coulson LJ, at paragraph 41, also referred to the sick note which simply says the person is not fit for work. Coulson LJ said:

'...although, in the present case, Mr Bruce was seen by a GP, the sick note simply said that he was not fit for work (it made no mention of attendance at court) and explained that that meant that he "may not be able to work", which also does not advance matters very far.

...particularly post-pandemic, the potential difference between being unfit for work and being unfit to attend court, is of some significance, given the wide use of live streaming and CVP in most court centres. It is now much easier for parties to attend court remotely, and for their evidence to be given, or their submissions heard, over a live link. In this way, even a party with a medical condition may, depending on the symptoms, be expected to participate remotely in a court hearing.'

For those reasons, therefore, a party in the position of Mr Bruce must appreciate that a pro-forma sick note of this type does not generally comply with the Ellis-Carr guidance.'

Wary eye

Where a party, prior to the relevant hearing, indicated a wish to have the hearing adjourned, but never made the relevant application, the Court may exercise a wary eye, and scrutinise the r.39.3. Application medical evidence, to see it is genuine. In Bruce, Coulson LJ said, at paragraph 44:

'...in my judgment, the judge properly took into account when refusing to re-open his order of 9 August. That was the fact that, weeks before, Mr Bruce had indicated that he was going to seek an adjournment because of the non-availability of [counsel], and also put in his own written evidence (for which he needed an extension). He never made an application to adjourn, or provided any written evidence. The judge was therefore entitled to scrutinise the medical evidence with a wary eye, in the knowledge that it was being advanced to justify an after-the-event adjournment of a hearing which Mr Bruce had previously said he needed, but had never sought, and which would avoid the consequences of a hearing (on 9 August) for which Mr Bruce had provided no evidence in defence of the allegations at all.'

On the facts, the appeal against the first instance judge's dismissal of the r.39.3 Application, was dismissed[6].

SIMON HILL © 2026*

BARRISTER 

33 BEDFORD ROW

Simon Hill practices in the following areas: insolvency, company and business law, with some tax and property law.

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