Henderson v London Borough of Hackney and Anor

An appellate court may adjourn a hearing where the appellant’s intended lay advocate becomes medically unable to proceed and the appellant reasonably accompanies him. A short same-day adjournment need not be ordered where it is unrealistic that the representative will be able to continue. The matter may instead be relisted as soon as possible on the same procedural basis, with the day’s costs treated as costs in the cause.

The appellant sought permission to appeal, with any appeal to follow immediately, from a judgment of the Employment Appeal Tribunal given on 13 July 2009. Permission had been refused on the papers, but the application was renewed before Sedley LJ and referred to the full court. The appellant’s lay representative, who had represented her below and was expected to address the Court of Appeal as an advocate, suffered breathing difficulties before the hearing and was taken to hospital. The appellant accompanied him. The central issue at this stage was whether the hearing should proceed or be adjourned.

1. Adjournment. The application for permission to appeal, and any appeal following permission, was adjourned. The Court had read the papers and was ready to proceed, but the appellant’s intended representative had developed breathing difficulties, required paramedic assistance and was taken to hospital. The appellant’s decision to accompany him was understandable.
2. Representation and listing. The Court had been minded to permit the lay representative to address it as an advocate, rather than merely as a McKenzie Friend, having regard to his previous appearances and the quality of the written submissions. In those circumstances, proceeding without him was not appropriate. An adjournment only until 2 pm was not realistic.
3. Further directions. The case was to be listed as soon as possible on the same basis. The Court expressed a preference, if practicable, for the present constitution to deal with the matter, since the papers had been read and the case was ready for hearing. The costs of the day were ordered to be costs in the cause.

• Employment Appeal Tribunal: Judgment given on 13 July 2009 by His Honour Judge McMullen QC.
• Court of Appeal (Civil Division): Permission to appeal was refused on the papers. The renewed application was referred by Sedley LJ to the full court. The Court adjourned the application and directed that it be relisted as soon as possible on the same basis: [2011] EWCA Civ 411.