Khudados v Hayden & Ors

An application to adjourn for illness is an exercise of case-management discretion. The applicant bears the burden of establishing a genuine inability to attend. The court may seek prompt medical clarification, but may refuse a further adjournment where the evidence is insufficient and the applicant rejects a reasonable opportunity for examination.

The court must balance both parties’ interests, delay, cost, prejudice and the need for a fair trial within a reasonable time. Article 6 requires a reasonable opportunity to present a case; it does not entitle a party to repeated adjournments. Counsel’s duty to assist the court does not ordinarily require counsel to remedy deficiencies in an opponent’s evidence by disclosing evidence favourable to that opponent.

The claimant, a specialist registrar in neurosurgery, sought injunctions restoring her employment, national training number and postgraduate training place, together with damages. After five earlier adjournments, the trial was listed before Burton J in February 2006. He refused a further adjournment sought on medical grounds and dismissed the claim when the claimant did not attend.

The claimant renewed her application for permission to appeal. She argued that the judge had wrongly assessed her medical evidence and that the respondents’ counsel should have placed before him an earlier medical report obtained at the Trust’s instigation. The central issues were whether counsel owed such a duty, whether the omitted report might have affected the decision, and whether the refusal to adjourn fell outside the permissible scope of the judge’s case-management discretion.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed. Ward LJ gave the leading judgment. Wilson LJ agreed with both judgments, and Holman J agreed with Ward LJ while adding reasons of his own.
2. The decision whether to adjourn was an exercise of case-management discretion governed by the overriding objective. An appellate court could intervene only if the decision fell outside the generous ambit within which reasonable judges might disagree. Burton J had considered the interests of both parties, fairness, the age of the proceedings, repeated adjournments, cost, inconvenience and the prejudice caused by leaving serious allegations unresolved.
3. The applicant bore the burden of showing that her inability to attend was genuine and that an adjournment was needed, applying Teinaz v London Borough of Wandsworth [2002] EWCA Civ 1040. The judge could test the brief medical evidence against the known circumstances. The failure to mention illness during an earlier application, the absence of material about the recommended endoscopy and the claimant’s refusal to co-operate with further examination entitled him to find the evidence insufficient.
4. A short adjournment may permit medical clarification, as illustrated by Andreou v The Lord Chancellor’s Department [2002] EWCA Civ 1192. Burton J adjourned overnight, ensured that the claimant received the respondents’ submissions and invited her response. Her rejection of the proposed examination made that course impossible or problematic. Although another judge might have allowed more time, the refusal of a further adjournment was open to Burton J.
5. The claimant’s Article 6 rights were not infringed. A fair trial required a reasonable opportunity to present her case. The judge afforded that opportunity and she rejected it. Fairness also protected the respondents, while the guarantee of a hearing within a reasonable time made the prolonged delay relevant.
6. Counsel had no duty to place the earlier medical report before the judge. The duty to assist the court and further the overriding objective did not require counsel to cure deficiencies in an opponent’s evidence or act contrary to the client’s proper interests. In any event, the claimant could have produced the report herself, and it would not have changed the result.

1. Court of Appeal (Civil Division): Granted permission to appeal but dismissed the appeal, holding that the refusal of a further adjournment was within the judge’s case-management discretion: [2007] EWCA Civ 1316.
2. Queen’s Bench Division: Burton J refused the claimant’s sixth application to vacate a trial date and dismissed the claim when she did not attend. No neutral citation for that decision is stated.