Faris v Riverside Community Healthcare NHS Trust

A decision whether to adjourn a civil trial is discretionary. The Court of Appeal should intervene only where the discretion was exercised in a clearly wrong manner.

The judge may rely on recent medical evidence and a first-hand assessment of a litigant’s ability to conduct the case. An adjournment application based on possible restoration of legal aid requires a balance of the benefit of representation against delay, costs, prospects of legal aid, and the litigant’s ability to act in person. Where judgment is entered after non-attendance, rule 39.3(3) provides the route to seek setting aside in the trial court.

The claimant brought proceedings against her former employer for psychological injury allegedly caused by bullying and workplace stress, and for an allegedly untruthful and negligent employment reference.

At the Central London County Court, His Honour Judge Ryland refused an adjournment on 7 January 2002. The trial was adjourned until the following day, when the claimant did not attend and her claim was dismissed. She sought permission to appeal against both decisions, challenging the assessment of her medical condition, the approach to her pending legal aid appeal, and the decision to proceed in her absence.

Application dismissed. Permission to appeal was refused.

1. The refusal of an adjournment was a discretionary decision. The Court of Appeal would be slow to interfere unless the discretion had been exercised in a clearly wrong manner. The trial judge had seen and heard the claimant and was therefore well placed to assess her ability to conduct the case.
2. The medical evidence did not establish that the claimant was unfit to represent herself. A recent general practitioner’s letter stated that she was in control of herself, articulate and able to appear in court. The judge was entitled, and indeed required, to take that relevant evidence into account. He was not obliged to defer the trial to allow the claimant to obtain another medical opinion. Whether the respondent had been entitled to seek the further medical opinion was a separate matter.
3. On the legal aid ground, the judge had to balance the assistance that reinstated legal aid would provide against the age of the proceedings, costs already incurred, the further delay likely to result, the claimant’s earlier vacation of a legal aid appeal date, the uncertain prospects of that appeal, and her demonstrated ability to act in person. His conclusion was not clearly wrong.
4. The judge was entitled to proceed when the claimant failed to attend on 8 January. He had seen her the previous day and had the relevant medical evidence before him. The Court of Appeal had no basis to conclude that he was wrong to deal with the case in her absence.
5. The procedural remedy for a judgment entered after non-attendance was an application to the trial court under Civil Procedure Rules, rule 39.3(3), to set the judgment aside. No such application had been made. There was therefore no prospect of appellate intervention on the merits of the damages claim.

1. Court of Appeal (Civil Division): On 3 October 2002, the application for permission to appeal was dismissed: [2002] EWCA Civ 1476.
2. Central London County Court: His Honour Judge Ryland refused an adjournment on 7 January 2002 and dismissed the claim on 8 January 2002 after the claimant failed to attend.