ADJOURNMENTS, ILL HEALTH, FAIRNESS AND THE DENTON PRINCIPLES: COURT OF APPEAL UPHOLDS CASE MANAGEMENT DECISIONS

In Dove -v- London Borough of Havering [2017] EWCA Civ 156 the Court of Appeal considered a number of procedural issues prior to giving judgment on the substantive point.  The defendants argued that they should have been granted an adjournment of the trial. The judge rejected that application. The judge’s decision was upheld by the Court of Appeal.

Where an application for an adjournment is made on medical grounds the court will normally expect to see evidence from a medical practitioner familiar with the patient and his or her medical condition. That evidence should identify what the medical condition is, and what features of it prevent participation in the trial process. The evidence should also provide a reasoned prognosis and describe what arrangements short of an adjournment could be made to accommodate a party’s difficulties. Even then, the ultimate decision is for the court to make.”

THE CASE

The appellants appealed against an order giving possession on the ground of rent arrears.  The judge had declined to grant an adjournment to the defendant tenants when legal aid had not been extended. The judge also refused an application on the grounds of ill-health and continued with the hearing on the third day when one of the defendants did not appear.  The tenants took a number of procedural issues on the appeal.

THE COURT OF APPEAL JUDGMENT

  1. Before engaging with the substantive points that arise on the appeal there are preliminary procedural points that must be addressed. Ms Evelyn Dove (but not Ms Elaine Dove) had been professionally represented by virtue of public funding. Very shortly before the trial that funding was withdrawn. In consequence on 20 April 2015, the first morning of the listed trial, counsel for Ms Evelyn Dove applied for an adjournment. Ms Elaine Dove did not join in that application. The judge referred to the lengthy delays that had occurred in progressing the case. The claim form had been issued in October 2012 and it had still not come to trial by April 2015. He noted a number of failures by the Misses Dove to comply with directions even when they were legally represented. He noted that the rent had not been paid in full since November 2011 but that rental payments were now being made at the rate of £19.58 per week although the rent was £110 per week with the result that arrears were mounting. He thought that it was “highly probable” that Havering would be able to demonstrate the necessary arrears to obtain a possession order. He noted that although the trial had been fixed since January 2015 no application for an extension of legal aid to cover the trial had been made until the week before trial. Had it been made earlier any appeal against the refusal of legal aid could have been dealt with without loss of the trial date. Thus the judge concluded that Ms Evelyn Dove’s difficulties over legal aid were of her own making. It had been conceded by counsel for Ms Evelyn Dove that if she had been privately represented the adjournment would have to be refused. The judge referred obliquely to the approach of this court to relief against sanctions, and also observed that there were no unassigned cases that he could deal with if the trial were to be adjourned. Nevertheless he decided that although the adjournment had to be refused he would postpone the start of the trial until the following day to enable the two defendants, now both in person, to prepare to defend the case. He remarked that they both appeared to him to be “perfectly articulate and intelligent young ladies.” The judge also had the benefit of a full skeleton argument prepared by counsel on Ms Evelyn Dove’s behalf which covered all the legal issues likely to arise at trial.
  2. Shortly before the trial Ms Evelyn Dove had made a witness statement in which she referred to a number of health problems from which she suffered. These included a lower oesophageal incompetent sphincter which gave rise to uncontrollable vomiting. However, it does not appear that the application for the adjournment was made on medical grounds alone. Although Ms Evelyn Dove’s evidence described her medical problems, many of which were historic, her evidence did not say that those problems incapacitated her to such an extent that she would be unable to conduct a trial. She had participated as a self-represented litigant in proceedings in the FTT (Social Entitlement Chamber) in an appeal against Havering’s decision to withdraw housing benefit on the ground that 61 Highfield Tower was not the home that she normally occupied. Much of the evidence that Havering proposed to rely on at trial was the same evidence that it had deployed before the FTT.
  3. Where an application for an adjournment is made on medical grounds the court will normally expect to see evidence from a medical practitioner familiar with the patient and his or her medical condition. That evidence should identify what the medical condition is, and what features of it prevent participation in the trial process. The evidence should also provide a reasoned prognosis and describe what arrangements short of an adjournment could be made to accommodate a party’s difficulties. Even then, the ultimate decision is for the court to make. The authorities on the subject are collected and discussed by Warby J in Decker v Hopcraft [2015] EWHC 1170 (QB). No such material was placed before the judge. Moreover, the nature of Ms Evelyn Dove’s medical complaint appears to be chronic and of long standing with the consequence that the same problem would have arisen on any adjourned hearing.
  4. Mr Manning submits that the judge misdirected himself by approaching the application as if it were an application for relief against sanctions. There was no sanction involved in the application for the adjournment which was brought about by the unexpected and late withdrawal of legal aid. Thus the judge did not adequately balance the prejudice that would be caused to the Misses Dove by having to represent themselves against the prejudice (or lack of it) that would be caused to Havering as a result of an adjournment. That failure amounts, he says, to an error of principle such that this court should intervene. In support of that submission he relied on the decision of this court in Bowden v Homerton University Hospital NHS Foundation Trust [2012] EWCA Civ 245. That was a case in which the claimant had recovered judgment in a clinical negligence case for damages to be assessed. The hearing of the quantum trial had been fixed. The claimant claimed £5.4 million and the defendant valued the claim at £200,000. On any view then the result, subject to the question of costs, would be a substantial sum payable to the claimant. The time-estimate for trial was eight days and the evidence included eleven expert reports. Shortly before trial, through no fault of his own, the claimant parted company with his solicitors, and he applied for an adjournment of the trial. The judge refused the amendment but this court allowed an appeal. Lloyd LJ (with whom Ward LJ) agreed said at [20] that the judge had not “conducted a proper balancing exercise” as between the parties. What was in the balance as far as the defendants were concerned was delay, disruption and the incurring of costs. However, as Lloyd LJ made clear at [24] each case turns on its own facts and on different facts “it would be entirely right for the court to adopt a much stronger line against the claimant … who seeks a very late adjournment of a possibly already postponed trial date following a very late parting of company with the party’s solicitors.” An adjournment was granted but on terms that the claimant paid the costs thrown away.
  5. What the judge said was this:
“Having regard to all the observations (without rehearsing them I hasten to add) that have fallen from the Court of Appeal in Mitchell and Denton, I consider that I have no realistic alternative but to refuse this application.”
  1. The judge was clearly familiar with those two cases. It is, however, clear that he did not approach the application as if it were an application for relief against sanctions. If he had done so he would have applied the well-known three stage test in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3296. Rather, in my judgment he was referring to the serious consequences, discussed in Denton, of adjourning trials at the last moment. In Denton at [45] the court stressed the importance of ensuring that “hearings, once fixed, are not adjourned.” In Denton itself the grant of relief against sanctions had necessitated the adjournment of the trial. This court held that the judge had been plainly wrong. In their joint judgment Lord Dyson MR and Vos LJ said:
“An adjournment would result in the protraction of proceedings which had already dragged on for far too long. It would cause a waste of court resources and generate substantial extra costs for the parties. It would cause inconvenience to a large number of busy people, who had carved out space in their diaries for the anticipated trial.”
  1. Although Jackson LJ delivered a judgment which differed in some of its reasoning he said at [89]:
“The judge’s order that the claimants pay “the defendant’s costs thrown away by the vacation of the trial” does not begin to meet the justice of the case. There are many hidden costs flowing from adjournment of the trial: witness statements and reports need updating; fee earners handling the litigation may change with a need for newcomers to read into the case; both legal teams continue to work upon the litigation and so forth. In addition to the increased costs there is wastage of resources. Lawyers, experts, factual witnesses and other busy people who had cleared their diaries to attend the trial (probably cancelling other commitments) will have to clear their diaries yet again for another trial a year later. There is also the continuing strain on the parties to consider. What litigants need is finality, not procrastination. Quite apart from its impact on the immediate parties in Denton, the judge’s order has caused unnecessary delay for many other litigants awaiting their day in court.”
  1. These considerations apply whatever the reason for the adjournment. There is no doubt that modern case management places considerable importance on not losing trial dates once they have been fixed. This is also reflected, for example, in PD 29 para 7.4 (1) which says:
“The court will not allow a failure to comply with directions to lead to the postponement of the trial unless the circumstances are exceptional.”
  1. Accordingly I do not consider that it can be said that the judge was wrong in his approach to a last minute application to adjourn the trial. In addition to the general undesirability of adjourning a trial to which all three members of the court adverted in Denton, there are, in my judgment, a number of factors specific to this case that militated against an adjournment. First the application was made very late. Second, the cause of the difficulty was Ms Dove’s legal representatives’ tardiness in applying for an extension of legal aid. Third, the trial date had already been adjourned once before. Fourth, rent at the full rate had not been paid for many years. This was not simply a case of disruption to Havering: the debt was increasing week by week. There was no realistic prospect that the Misses Dove could pay off the arrears or even pay the current rent. Fifth, there was no realistic prospect that the Misses Dove could pay the costs thrown away by an adjournment: and indeed there is no record of any offer by them to do so. Sixth, an adjournment would have caused disruption and inconvenience to other court users. Seventh, there was no certainty that an adjournment would serve any useful purpose. Set against that was the difficulty, which the judge recognised, that the Misses Dove would face in defending the case without legal representation. What weight to give each of these factors was essentially a matter for the judge. This court should not interfere with case-management decisions of this kind unless compelled to do so. I would reject this ground of appeal.
  2. The second procedural ground on which complaint is made is that Havering produced to the judge a DVD recording of an inspection of the flat at Highfield Tower. This was not a DVD that was new to the Misses Dove as it had been deployed by Havering in earlier proceedings in the FTT (Social Entitlement Chamber) to which Havering and the Misses Dove were both parties, and to which I refer further below. It was referred to extensively in the FTT’s reasons for dismissing the appeals of both the Misses Dove, and copies of those reasons were exhibited to the witness statement of Mr Earl Baker in support of Havering’s claim for possession. Mr Manning (who of course did not appear at trial) submits that they had no notice that Havering would rely on this DVD and were unable to object to its introduction into evidence. We have no transcript of the trial although Havering have been pressing for one. But Mrs Lovegrove, who did appear at trial, says that when Ms Elaine Dove was cross-examining Ms Hilton, one of Havering’s witnesses, she (Ms Dove) herself referred to the DVD and said that it showed occupation of the flat as a home and that it supported the veracity of certain photographs that she had produced. The judge then asked whether he could see the DVD. No one objected and so he did.
  3. Mr Manning suggests that Miss Evelyn Dove was deprived of an opportunity to give evidence about the contents of that DVD. However, that submission is belied by Ms Elaine Dove’s witness statement of 31 March 2014, paragraph 10 which refers in detail to that DVD and explains why Ms Dove thought that the DVD was misleading. It must have been recognised by Ms Evelyn Dove (or her legal advisers when she was represented) that the contents of the DVD were in play. In addition as I have said the FTT referred to the DVD in some detail so its contents (even if not the DVD itself) formed an important part of Havering’s case. I would reject this ground of appeal too.
  4. In addition under this head Mr Manning submits that it was procedurally unfair for the judge to have continued with the trial on the third and last day. By that stage Havering’s evidence had all been heard and its case had been closed. It was now for the Misses Dove to give evidence. However, when the judge came into court for the last day of the trial Ms Evelyn Dove was not present. We were told (without contradiction) that Ms Elaine Dove explained to the judge that her sister had fallen ill. But no more was said about the nature of the illness and no application for an adjournment was made. Ms Evelyn Dove had given evidence in writing which the judge admitted and considered. In those circumstances we do not consider that the judge can be criticised for continuing with the trial.

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