Albon (t/a NA Carriage Co) v Naza Motor Trading SDN BHD

On an application to adjourn a trial because of a witness’s illness, pre-CPR authorities identifying four conditions provide relevant considerations but do not determine the exercise of discretion.

The governing framework is the overriding objective in Civil Procedure Rules 1998, r 1.1. The court must deal with the case justly, including by allocating only appropriate court resources and considering the parties’ compliance with directions and their conduct. An adjournment may be refused where the evidence can be adduced without the witness’s attendance, the future trial date is uncertain, the delay causes material prejudice, or the applicant’s conduct has wasted court resources and placed improper pressure on the court.

The claimant sought determination of a substantial dispute concerning car-export transactions and alleged agreements. The defendant made a Barrell Application to set aside earlier judgments, relying on newly disclosed documents and communications.

At the hearing of the Application, the defendant sought an adjournment because an important witness was ill. The witness’s statement was already before the court, the defendant’s legal team and other witnesses had been stood down, and no definite future trial date was available. The central issue was whether justice required an adjournment under the Civil Procedure Rules 1998, notwithstanding the authorities relied on by the defendant.

1. Application dismissed. The defendant’s application for an adjournment was refused.
2. The authorities concerning adjournments for witness illness, including Dick v Piller [1943] KB 497 and R v Sevenoaks General Commissioners ex parte Thorne [1989] 560, identified four relevant considerations: whether the witness was unable to attend through illness; whether the evidence was reasonably necessary; whether there was a reasonable prospect of attendance at a specific reasonable future date; and whether the other party would suffer irremediable injustice. Those considerations did not govern the court’s discretion under the CPR.
3. The applicable framework was the overriding objective in CPR r 1.1. The court had to deal with the case justly, while considering the appropriate allocation of court resources, compliance with directions, and the parties’ conduct. The four considerations from the earlier authorities remained relevant, but were not decisive.
4. The witness’s illness satisfied the first consideration, but the remaining considerations did not. Her statement was already in evidence, and her absence affected weight rather than admissibility. Cross-examination could proceed by video link, and her evidence was of secondary importance. There was no sufficiently definite date for her attendance, and further delay would materially prejudice the claimant.
5. The defendant’s failure to lodge its skeleton argument and its decision to stand down counsel, solicitors and witnesses wasted the five-day allocation and would require a further inappropriate allocation. The court could not countenance conduct that effectively placed pressure on it to grant an adjournment by making dismissal the alternative.
6. The court also considered, provisionally, that the Application would fail on its merits. The issues concerning alleged fraud and forgery required fuller evidence and should not be tried in isolation. The Application was therefore dismissed.