Salamony v Balfour Beatty Construction Ltd

An adjournment should be refused where the application is excessively late, the proposed step has not been initiated, the opposing party would suffer substantial prejudice, and the claim appears unable to succeed. Where the claim is bound to fail, the court is obliged to strike it out. Indemnity costs may be ordered where the history and conduct of the litigation are wholly irresponsible and unreasonable, including late applications, unexplained delay, deficient evidence and attempts to reformulate a hopeless claim at the last moment.

The claimant appealed against a judgment of His Honour Judge Green refusing an adjournment of the trial and striking out the action. The claim sought £150,000 under an alleged consultancy agreement concerning a proposed Egyptian joint venture. The claim was pleaded as having been made by a company later struck off the Irish register, but the claimant had not begun the process of restoring it.

The judge also ordered indemnity costs against the claimant. The appeal concerned whether the adjournment should have been granted to allow restoration proceedings to be pursued and whether the costs order was justified.

1. Appeal dismissed. The claimant had delayed for five years before commencing proceedings concerning an alleged oral agreement made in 1995. The application for an adjournment was made very late, and no steps had been taken to restore the company to the Irish register, despite the claimant’s knowledge of the problem.
2. The court was entitled, and indeed obliged, to refuse the adjournment. Relevant considerations included the unexplained delay, the absence of evidence of the claimant’s means to pursue restoration or meet wasted costs, the substantial prejudice to the defendant from losing the fixed trial date, and the dubious nature of the claim and supporting evidence.
3. The claimant’s own evidence was materially inconsistent with the pleaded case. It indicated that the defendant had dealt with him personally rather than with the company. The later documents relied upon did not support the pleaded agreement and, in material respects, contradicted it.
4. Since the claim was bound to fail, the judge was obliged to strike it out. The appeal court upheld that conclusion.
5. The indemnity costs order was justified. The claim and conduct of the litigation were wholly irresponsible and unreasonable, having regard to the hopelessness of the claim on the claimant’s own evidence, the failure to respond to the company-search information, the last-minute adjournment application, the piecemeal production of evidence, unsatisfactory documentation and the late attempt to amend the pleadings.

1. High Court (Chancery Division): Appeal against the judgment of His Honour Judge Green dated 27 June 2003 dismissed. The refusal of an adjournment, strike-out of the claim and indemnity costs order were upheld.