Irving v Penguin Books Ltd & Anor

An adjournment of a fixed appellate hearing is a matter of justice between the parties and of the proper administration of justice. The court may consider the time already elapsed, any previous adjournment, prejudice to the opposing party, witness availability, the court’s preparation, the difficulty of reconvening the constitution, and disruption to other cases. Parties are generally expected to comply with fixed hearing dates unless strong reasons justify postponement. A party’s late breakdown with solicitors, coupled with a wish to instruct new representatives and counsel’s lack of readiness, will not ordinarily justify a further adjournment where substantial preparation has occurred and the opposing party and the court would suffer significant prejudice.

David Irving applied to adjourn the hearing of his appeal against a judgment given by Gray J in the Queen’s Bench Division in April 2000. The appeal and an application to adduce fresh evidence had been listed for the following week.

Mr Irving had terminated his solicitors’ retainer shortly before the application. His counsel appeared pro bono for the adjournment application, but said that further preparation would not be undertaken until a new brief was delivered. Proposed new solicitors sought 21 days to prepare. The respondents opposed the application, relying on the existing delay, an earlier adjournment, prejudice to Professor Lipstadt, difficulties concerning a proposed witness, and the Court’s preparation for the hearing.

The issue was whether the appeal should be adjourned for a second time.

Application refused. Lord Justice Pill delivered the judgment, with which Lord Justices Mantell and Buxton agreed. The respondent was awarded the costs of the application.

1. In deciding whether to adjourn a fixed hearing, the Court must do justice between the parties while also considering the proper administration of justice. Relevant matters include the time elapsed since the judgment, any previous adjournment, prejudice to the opposing party, the availability of witnesses, the Court’s preparation, the practicability of reconvening the constitution, and the effect on other litigants and listed cases.
2. Fixed hearing dates should ordinarily be respected. The Court’s concern with its own position is not a matter of judicial convenience. Disruption to the Court’s work can cause unavoidable inconvenience and distress to other parties whose cases would have to be adjourned.
3. The present circumstances did not provide sufficient grounds for a further adjournment. About 14 months had elapsed since the judgment, the Court had already granted a three-month adjournment, and the respondents had undertaken substantial preparation. Professor Lipstadt remained personally affected by the continuing litigation, and the proposed attendance of Professor Van Pelt created additional practical difficulty.
4. Mr Irving’s decision to terminate his solicitors’ retainer and his proposed instruction of new solicitors did not, in these circumstances, justify postponing the hearing. The Court therefore kept the appeal in the list for the following Wednesday. The merits of the appeal and the fresh-evidence application were not determined by this judgment.

• Court of Appeal (Civil Division): On 15 June 2001, refused the application to adjourn the appeal and ordered that the respondent have the costs of the application. The appeal remained listed for hearing; its merits were not decided.
• High Court of Justice, Queen’s Bench Division: Gray J gave judgment in April 2000, from which the appeal was brought. The citation is not stated in the judgment.