Khudados v Hayden & Ors

When a party seeks an adjournment of a long trial on medical grounds, the court must assess the quality and likely impact of the medical evidence and consider proportionate alternatives before dismissing the claim. The overriding objective requires attention to the prejudice to all parties and to whether a shorter adjournment, further medical evidence, or oral evidence from the treating doctor could meet the difficulty. Litigation should not grow out of proportion to the issues, and mediation may be appropriate even at a late stage.

The claimant sought permission to appeal from orders made by Burton J on 28 February 2007. He had refused to adjourn a 25-day trial of her claim and had dismissed the claim with costs, including an inquiry into damages arising from her cross-undertaking given when she obtained an injunction.

The proposed appeal concerned the assessment of medical evidence, the claimant’s ability to proceed, the overriding objective, proportionality, and alternative means of avoiding prejudice to the defendants. Ward LJ considered whether the application should be called on notice and heard by a full court. Sedley LJ agreed. The immediate issue was whether the application for permission should be adjourned for that purpose.

1. Application adjourned. Ward LJ directed that the application be re-listed on notice to the respondents, with the appeal to follow if permission were granted, before a court of three, one of whom could be a High Court judge.
2. The medical evidence before Burton J was materially unsatisfactory. Although the claimant suffered from a recurring abdominal problem, there was a clear question about its impact, and the evidence did not adequately explain the position after earlier investigations and treatment. A medical report obtained by the defendants, but apparently not placed before the judge, was relevant to assessing the likelihood and disabling effect of a recurrence.
3. Before dismissing the claim because a late adjournment would prejudice the defendants, the judge should have considered proportionate alternatives. These included a short adjournment to obtain focused assistance from an independent medical expert, or requiring the claimant’s general practitioner to attend and supplement the deficient evidence.
4. The independent-examination possibility was considered by reference to Andreou v Lord Chancellor's Department [2002] IRLR 728. The claimant’s stated objection made that course difficult or problematic, but did not remove the potentially available alternative of oral evidence from her general practitioner.
5. Ward LJ strongly endorsed mediation, observing that the litigation had expanded from an expedited two- or three-day hearing to a 25-day trial and might have become disproportionate. Sedley LJ agreed with Ward LJ’s reasoning and mediation indication.

• Court of Appeal (Civil Division): The application for permission to appeal was adjourned on notice. It was directed to be re-listed before a court of three, with the appeal to follow if permission were granted.
• High Court, Queen’s Bench Division: Burton J refused the claimant’s application to adjourn the 25-day trial and dismissed her claim with costs, including an inquiry into damages on her cross-undertaking.
• High Court, Queen’s Bench Division: Eady J had earlier refused an adjournment application based on the claimant’s inability to retain solicitors.