Popinder Kaur Dhillon (Acting By Her Litigation Friend) v Yaw Asiedu

A trial adjournment is a case-management decision governed by the overriding objective and the requirement to deal with cases expeditiously and fairly. The court must consider the position of both parties and balance every relevant circumstance. Earlier factors concerning a witness’s illness, the necessity of the evidence, the prospect of attendance on a reasonably proximate future date and irremediable prejudice remain relevant, but are not individually determinative.

On appeal, the controlling question is whether the procedural decision was fair. More than one outcome may be fair. The appellate court should intervene only where the first-instance judge omitted a material consideration, considered an immaterial matter, erred in principle or reached an impermissible decision.

The respondent brought possession proceedings to enforce an unregistered charge securing a loan made in connection with a property transaction. The appellant defended the claim and counterclaimed, but severe depression and an adjustment disorder affected her ability to provide instructions and attend court. Following repeated extensions and unappealed unless orders, she was debarred from relying on further witness evidence.

When the case came before HHJ Cowell in the Central London County Court for its third trial listing, the appellant sought an adjournment because she lacked capacity and her recently appointed litigation friend allegedly had insufficient preparation time. The judge refused the application, proceeded with the trial, found for the respondent and dismissed the counterclaim. The appellant challenged the refusal to adjourn as fundamentally unfair.

1. The appeal was dismissed unanimously. The power to adjourn under rule 3.1(2)(b) of the Civil Procedure Rules 1998 is discretionary and must be exercised consistently with the overriding objective. Fairness requires consideration of both parties’ positions and all material circumstances.

2. The earlier factors identified in Albon—illness preventing attendance, the reasonable necessity of the witness’s evidence, a reasonable prospect of attendance at a specified future date and the absence of irremediable injustice to the other party—remain relevant. Under the CPR they are not necessarily determinative. The judge must undertake a balancing exercise.

3. The appellate question is whether the procedural decision was fair, rather than whether it fell within a broad discretionary range. The first-instance evaluation nevertheless remains important because more than one genuinely fair solution may exist. Appellate intervention is justified only where the decision was plainly wrong through reliance on immaterial factors, omission of material factors, error of principle or an impermissible conclusion.

4. HHJ Cowell had considered the appellant’s mental illness and lack of capacity. He was entitled to take account of her repeated non-compliance while she had capacity, the failure of her legal team to prepare for a possible refusal, the limited apparent relevance of her prospective evidence and the absence of a reliable prospect that she could participate within a reasonable time.

5. The judge was also entitled to consider the respondent’s attendance from Ghana, the third listing of the trial, his financial pressures and the risk that other secured debts might prejudice recovery. The accommodations made during the hearing gave the litigation friend additional time. The resulting balance was permissible and did not make the trial unfair.

6. A witness statement tendered after the appeal hearing was not admitted. No application to adduce fresh evidence had been made, the draft had existed before the hearing, and admitting it would have required a further hearing and renewed submissions.

• Court of Appeal (Civil Division): By [2012] EWCA Civ 1020, unanimously dismissed the appellant’s appeal against the refusal to adjourn.
• Central London County Court: HHJ Cowell refused the appellant’s application to adjourn the trial on 14 November 2011. After trial, he found for the respondent and dismissed the counterclaim.