Terluk v Berezovsky (Rev 1)

An appellate court reviewing a refusal to adjourn must decide whether the decision was fair. The question is one of law, not whether the first-instance decision fell within a broad discretionary range. More than one outcome may be fair. Intervention is justified only where the reviewing court can confidently conclude that the course taken was unfair.

A waiver of jury trial in defamation remains effective where the party understood the choice and truly consented. Subsequent regret does not invalidate it. An adjournment sought to obtain representation may fairly be refused where promised funding and representation are unsupported by reliable evidence available to the judge at the time.

The claimant succeeded in a libel action tried without a jury before Eady J, who awarded £150,000 damages and costs against the defendant and RTR. The defendant had denied that he was the anonymous source shown in a television programme alleging that the claimant fabricated a threat to his life to support an asylum claim.

The defendant sought permission to appeal from [2010] EWHC 476 (QB). The Court of Appeal considered whether his agreement to trial by judge alone was a valid waiver, and whether Eady J should have adjourned the trial so that he could obtain professional representation.

1. Permission to appeal on the jury issue was refused, and the appeal on the adjournment issue was dismissed. The court’s single judgment held that the defendant’s waiver of jury trial was valid. Although jury trial in defamation is a fundamental right, it may be waived. The judge’s explanations were clear, the defendant had an interpreter, and the recording showed that he understood the choice and repeatedly expressed a wish not to have a jury. Later regret, or the possibility that legal advice might have led to a different choice, did not undo genuine consent.

2. The appellate question on an adjournment affecting fairness is whether the first-instance decision was fair in the circumstances. It is a question of law and does not attract a broad Wednesbury-style review. The appellate court must apply the correct legal test to the facts found by the judge. It does not ask whether the judge selected the sole fair outcome, because more than one genuinely fair outcome may exist. It intervenes only where it can confidently conclude that the course taken was unfair.

3. Eady J’s Friday refusal to adjourn was fair. There was then no realistic prospect of legal representation, and further preparation by the defendant’s McKenzie friend would not materially improve the assistance available. The claimant was entitled to have serious allegations resolved after substantial delay and expense. The defendant was instead entitled to translation and a full opportunity to participate.

4. By Monday, the assertion of potential funding and solicitors was a new matter, but it was unsupported by documentary evidence. Eady J was entitled to regard the proposed funding as too uncertain to show that an adjournment would achieve representation. Funding that materialised after the event could not affect the legal correctness of the decision made on the material then before the judge. The court accepted that article 6 of the ECHR protected a fair trial for both parties; it did not require an adjournment on these facts.

• Court of Appeal (Civil Division): Permission to appeal was refused on the judge-alone trial issue. Permission was granted on the adjournment issue, but the appeal was dismissed: [2010] EWCA Civ 1345.

• High Court, Queen’s Bench Division: Eady J tried the libel claim without a jury and awarded the claimant £150,000 damages and costs against the defendant jointly with RTR: [2010] EWHC 476 (QB).