Bari v London Borough Of Waltham Forest

An appellate court may grant a further adjournment where it accepts that a party’s intended representative is too unwell to attend and that the party reasonably expected that assistance. The discretion must also account for the age of the matter and the need for finality. Where the case has been outstanding for a substantial period, the court may make the adjournment final and direct that, if the party or representative does not attend the relisted hearing, the application will be determined on the documents, provided those documents enable a just determination.

Mrs Bari applied to reinstate an appeal from an Employment Appeal Tribunal decision. The application had previously come before Mummery LJ on 21 December 2000, when Mrs Bari did not attend; she stated in an affidavit that she had never received notice of the hearing. The matter was later listed before Keene LJ, but on the hearing day she sought an adjournment because her husband, who was expected to represent her, had recently returned from hospital and was awaiting bypass surgery. The central issue was whether justice required another adjournment and how the long-outstanding application should thereafter be managed.

1. Further adjournment. The court accepted that Mr Bari was not well enough to attend and that Mrs Bari had anticipated that he would speak on her behalf, as he had done previously. In those circumstances, the application was adjourned once more.
2. Finality and delay. The matter was already of considerable antiquity and had been before Mummery LJ approximately 11 months earlier. The court emphasised that it could not be allowed to drag on indefinitely. This was therefore almost certainly to be the final adjournment, whether sought because of ill health or for any other reason.
3. Proceeding in the absence of the applicant. The Civil Appeals Office was directed to warn Mrs Bari that, if there were no attendance at the next acceptable hearing date, the court would proceed in her absence and determine the application on the documents. The documents were extensive and, in the court’s view, sufficient to enable a just determination of the merits.
4. Listing. The matter was not reserved to Keene LJ. He indicated that he would not be sitting in Civil Appeals after November and that further delay into the following term would be undesirable.

The merits of the application to reinstate the appeal were not determined on this occasion.

• Court of Appeal (Civil Division) — The application to reinstate an appeal from the Employment Appeal Tribunal was listed before Keene LJ. On 15 November 2001, the court granted a further adjournment and directed that the matter would be determined on the documents if there were no attendance at the next hearing.
• Earlier Court of Appeal hearing — The matter had previously been before Mummery LJ on 21 December 2000, when Mrs Bari did not attend. No citation for that hearing is stated in the judgment.