In Decker -v- Hopcraft  EWHC 1170(QB)Mr Justice Warby set out the principles to be considered when a litigant seeks an adjournment of a hearing on the grounds of ill health. The judge held that there were five main factors to be considered. Applying those to the facts of this case the application for an adjournment was refused and the judge made an order for the trial of preliminary issues.
The claimant was bringing several actions for defamation, he acted as a litigant in person. The defendant applied to strike out the actions or for the trial of a preliminary issue . Shortly before the application was due to be heard the claimant sought an adjournment.
The Claimant’s Application to Adjourn
- On Tuesday 21 April 2015, just one clear day before the hearing date, the Claimant issued the application notice now before me, seeking to adjourn. It asked the Court to make an order for an adjournment without holding a hearing. The Claimant’s application came before me late on the afternoon of 21 April and I made an order on the papers on the following morning, 22 April 2015. It was apparent that the application was likely to be opposed. I directed that the Defendant’s applications should remain listed as they were, and that the Claimant’s application should be dealt with at the same hearing.
- I also directed that the Claimant should serve his medical evidence on the Defendant, which had not at that stage been done, and that the Defendant should file any evidence to be relied on as soon as possible. Those directions have been complied with. The Claimant has also added to his evidence and has made submissions in writing. He has asked the Court to deal with his application in his absence, stating that he is not well enough to attend. It is clear that if the matter is not adjourned the hearing will proceed in the Claimant’s absence. Plainly, his application is the first order of business.
- 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  EWHC 63 at :
“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  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  EWCA Civ 324 , 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  EWHC 734 (Ch) .
- 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 , 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  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 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 Grahamthat 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 made by Ms Wilson, in order to assist the court, 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.
- It is with these principles in mind that I approach the question of whether, as Ms Wilson put it, it is necessary to adjourn these applications, in this case, because of the ill-health problems of this claimant.
Discussion and conclusions
- My decision must be taken in accordance with the overriding objective of dealing with cases justly and at proportionate cost. In my judgment Ms Wilson is right to characterise this as a small claim. As such, it is particularly important that it should be managed efficiently and without avoidable delay.
- The Claimant is physically fit to attend. The issue relates to his intellectual capacity. There are substantial reasons to be sceptical of some of the Claimant’s contentions as to his cognitive difficulties. He is clearly capable currently of functioning at a high level, and that has plainly been the position over recent months. His correspondence in relation to this action up to date, including his present application and his most recent correspondence suggest a lively intelligence operating effectively. The correspondence in respect of other matters to which I have referred is of the same nature. His explanations for his ability to write long, complicated and detailed letters do not strike me as convincing. It seems perfectly clear, for example, that his letter of 18 February 2015 to Ms Thorne was not a standard form letter, and that it was composed within a few hours.
- The medical evidence the Claimant has produced to substantiate his claims is in my judgment unimpressive, on a proper analysis. So far as cognitive impairment is concerned, I have no evidence at all that is directed to the Claimant’s ability to conduct a hearing such as the present. The only evidence I have on the question of cognitive impairment which is independent of the Claimant himself is the GP’s certificate, which uses the words “cognitive impairment” but does not elaborate in any way, and the letter of Dr Venn. The GP’s certificate is designed to justify absence from work but I am not told what work the Claimant is or would be engaged in, and it does not follow from the GP’s opinion on that topic that the Claimant would be unable to cope with this hearing. Dr Venn’s letter does speak of intellectual problems, evidently involving short-term memory. However it is two months old. In addition, the documentary evidence shows that the Claimant was able at the same period of time to compose lengthy and complex correspondence on legal matters, at some speed. That ability appears to me undiminished since 18 February 2015, as evidenced by the Claimant’s prompt, fulsome and eloquent correspondence over the past few days. I accept Ms Wilson’s characterisation of the previous correspondence.
- I accept as I have indicated that the Claimant is suffering some cognitive impairment, but I do not regard the evidence he has provided as establishing such an impairment that it is necessary in order to deal justly with the matters raised by the Defendant’s applications to grant him an adjournment. I do not consider that the evidence shows that the Claimant is or would be so impaired that he could not conduct this hearing adequately with, if necessary, reasonable accommodations for any difficulties he would experience.
- Important factors in reaching that conclusion are the nature of the applications that are before the Court; the fact that their merits have been debated in Skeleton Arguments and correspondence already; and what appear to me to be the merits of the Claimant’s position on those applications. The applications for preliminary issues raise procedural matters which will not determine any rights or obligations. To the extent that the applications seek final determination of rights or obligations I bear in mind the need for caution which Ms Wilson has highlighted but the issues have been clearly identified and the parties’ positions identified well in advance of this hearing and, for reasons to which I shall come, they are in my view matters the appropriate resolution of which is so plain and obvious that it could not be said that the Claimant suffers any relevant prejudice by reason of his ill-health.
- For these reasons I refuse the application for an adjournment. In reaching that conclusion I repeat that I place little weight on the Defendant’s [presumably meant to refer to Claimant] health. I also leave out of account the 2013 email relied on by Mr Deans, which seems to me a point that in itself carries no weight in the present circumstances. Applying the principles I have outlined above I also proceed in the Claimant’s absence. I do so because in my judgment he has voluntarily absented himself although he is fit enough to participate in these proceedings today – albeit he might need some breaks – and because I consider the right orders to make are so clear that it is not unjust to proceed in his absence.
- Adjournment granted when medical expert “unable” to attend: better evidence needed in future.
- Also see my colleague John Collins on The Doctor’s Note in the Zenith PI Blog.