Islam v Meah

In a lengthy civil trial turning largely on disputed oral evidence, the desirability of legal representation can outweigh the need to proceed promptly, particularly where an unrepresented party has limited English, limited understanding of legal process and no suitably qualified McKenzie friend. The age of the dispute and the need for an early hearing remain important considerations, but they do not override the practical requirements of justice. Where representation is highly desirable for the parties and the court, an adjournment may be ordered to allow public-funding arrangements to be pursued.

The defendant sought permission to appeal against Penry-Davey J’s order of 13 October 2005 dismissing his application to adjourn a five-day trial. The underlying claim was for damages for alleged false imprisonment arising from a family dispute. The claimant alleged that he had been confined in the defendant’s home, while the defendant denied the allegations. The defendant was unrepresented after private funding ended, had limited English and legal understanding, and was awaiting a Legal Services Commission decision. The central issue was whether the trial should be postponed to enable him to obtain publicly funded legal representation.

1. Disposition. Permission to appeal was granted and the appeal was allowed. The trial date was vacated and the case was directed to be relisted.
2. Balancing considerations. The High Court judge was entitled to attach importance to the age of the dispute and the risk of further delay, particularly because the case depended almost entirely on oral evidence about events more than five years earlier. Those considerations were important but were not overriding.
3. Need for representation. The proposed trial was expected to last several days and involve about ten witnesses whose credibility would be disputed. The family nature of the dispute meant that emotions might run high. The defendant was 64, had only a basic command of English, limited education and a limited understanding of the legal system. In those circumstances, legal representation was highly desirable for both the parties and the court, and the trial should be adjourned to allow the defendant to pursue his funding application.
4. McKenzie friend. Sir Paul Kennedy emphasised that the defendant’s son could not realistically be expected to act as a suitably qualified McKenzie friend throughout the trial. Without legal representation, the defendant would therefore lack adequate assistance.
5. Directions and costs. The case was relisted within a trial window from 13 February to 20 March, with a case management conference to be held beforehand. The costs of the permission application and appeal were made costs in the case. The defendant was ordered to pay any costs thrown away by the adjournment, subject to assessment.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1485, permission to appeal was granted and the appeal was allowed. The trial was vacated and relisted, with directions for a case management conference and costs.
• High Court, Queen’s Bench Division: Penry-Davey J dismissed the defendant’s application on 13 October 2005 to adjourn the forthcoming trial.