Requesting an adjournment for medical reasons may not always succeed following a recent ruling, says District Judge Stephen Gerlis
Mr X had got himself involved in litigation with Mr Y concerning his occupation of Mr Y's premises. He had lost hands down. There were three orders against him - a money judgment, a striking-out of proceedings he had brought against Y, and a statutory demand. He decided to apply to set aside all three orders.
However, on the day of the hearing, Mr X said he could not make it to court because of ill-health and asked for the hearing to be adjourned until he was well enough to attend. The court refused.
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| Ho! Ho! Yonder knave thought that I would adjourn his case simply because he has big black spots all over him! |
In Great Future International Ltd v Sealand Housing Corporation [2001] Lawtel, 8 June, Mr Justice Neuberger set out four tests for considering whether an adjournment should be granted. The factors to consider are:
Bearing these ground rules in mind, the result in Raymond James Fox v Graham Group Ltd [2001] The Times, August 3, was no surprise. Mr Fox had failed to turn up to court on the adjourned hearing of his application to annul his bankruptcy. He had asked the court to adjourn the hearing because of illness.
Mr Justice Neuberger was prepared to be fairly generous to such a request where there had been no previous similar requests and where the applicant stood some chance of success with the substantive application. Mr Fox's application to annul was 'hopeless'. The decision to refuse the application to adjourn was upheld.
A more hopeful precedent for Mr X would have been Teinaz v Wandsworth LBC [2002] EWCA Civ 1040, [2004] All ER (D) 238 (Jul). Six days before the hearing of Mr Teinaz's claim before an employment tribunal, his representative sent a letter to the tribunal requesting an adjournment on the basis that Mr Teinaz was too ill to attend court. Attached to it was a note from a doctor saying that Mr Teinaz should 'take two weeks away from work on the grounds of stress and not attend the court hearing'.
The tribunal refused the request, finding the medical evidence 'utterly inadequate'. Mr Teinaz appealed to the Employment Appeal Tribunal (EAT), this time producing stronger evidence from his doctor, pointing out the risks to his health if he attended before the tribunal. He was successful, the EAT accepting that he had not chosen to be absent but was merely acting on the advice of his doctor.
The Court of Appeal upheld the decision. It confirmed the right of a litigant to a fair trial where he had been prevented from attending by no fault of his own. Where the medical evidence was inadequate, the tribunal should have ensured that further enquiries were made of the doctor. Whether this would have been possible within the short period after the tribunal was notified of a problem is a matter for conjecture.
However, in Andreou v LCD [2002] EWCA Civ 1192, [2002] All ER (D) 309 (Jul), Sandra Andreou took the Lord Chancellor's Department (as it then was) to an employment tribunal, claiming 'racial discrimination, harassing and bullying'.
At some point in the proceedings, she asked for an adjournment on the basis that she was too ill to attend the hearing. She produced a letter from her doctor stating that she was unfit to attend work but it did not mention her ability to attend before the tribunal. She had already been off work for a considerable time. Despite additional information being sought from the doctor, he refused to be drawn on whether she was fit enough to attend before a tribunal hearing. The Court of Appeal restored the decision of the employment tribunal to refuse the adjournment, which led to the eventual dismissal of her claim. The court held that a certificate from a doctor that someone was not fit enough to attend work did not necessarily mean that they would not be fit to attend court. The court also bore in mind that this case had been going on for some time and that any more delay would hold up other litigants who had other cases waiting to be heard.
In St Ermins Property Company v Draper [2004] EWHC 697 (Ch), [2004] All ER (D) 245 (Jan), Mr Justice Etherton overturned a decision to refuse an adjournment of a possession hearing where the defendant had asked to be excused because of illness. The county court had rejected the application because the defendant had never before pleaded illness and no medical certificate was produced to confirm the defendant's condition. Mr Justice Etherton held that the court had no reason to disbelieve the defendant or consider her to be unreliable. It will have helped her position that the court also considered that her case stood a reasonable chance of success.
What, then, became of Mr X's application for an adjournment? He had failed to present any medical evidence in support of his assertion that he had to attend a medical appointment or that he was not well enough to attend at the arranged time for the hearing. He had failed to appeal any of the orders. Even if he had bothered to turn up for the hearing of his applications, the great likelihood is that they would have failed. Thus in the case of Cadogan & Anor v Anthony [2004] Lawtel, November 17, Mr Justice Evans-Lombe confirmed that the decision to refuse an adjournment of the applications to Mr X was correct.
What lessons can be learned from the precedents? First, if illness is being pleaded as an excuse for not attending a hearing, make sure it is supported by medical evidence that confirms unfitness to attend court. Secondly, if the case is weak in any event, the refusal of an adjournment that inevitably leads to a dismissal may seem harsh at the time but is probably a kindness in the long run.
District Judge Stephen Gerlis sits at Barnet County Court
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