Miah v Jalil & Anor

A court must adjourn a hearing where proceeding would materially prejudice a party who prepared for a narrower issue and lacked a fair opportunity to address the revived issues. This applies where relief from an earlier procedural order reopens liability at a hearing listed only for remedy, particularly where the time allowed is inadequate, the trial bundle was late or incomplete, and the claimant seeks to advance a materially different cause of action. Case-management discretion and the overriding objective do not displace the overriding requirement of fairness. An amendment permitted after the refusal of an adjournment and withdrawal of counsel cannot stand, although the amendment may be unobjectionable if sought in good time.

The claimant alleged that he had paid £30,000 to acquire a share in a restaurant partnership. The pleadings changed during the proceedings. The final version sought unpaid profits, a declaration of partnership and transfer of shares in a company.

After the defendants failed to comply with an unless order, the County Court entered judgment for the claimant, leaving the amount to be determined at a hearing listed for remedy. The judge later granted relief from that order, refused an adjournment, allowed the claimant to reintroduce a restitutionary claim and proceeded in the absence of the defendants’ first defendant and after their counsel withdrew. Judgment for £30,000 was entered against both defendants. The central issue was whether it was fair to proceed in that way.

Lord Justice Underhill gave the reasons for judgment, with which Lord Justices Floyd and Richards agreed.

1. Disposition. The judgment and the order permitting re-amendment were set aside. The case was remitted to the County Court for trial.
2. The hearing had been listed to determine remedy. Once relief from the earlier order was granted, liability revived, but the parties were entitled to have prepared on the basis that a fresh hearing would be required. Proceeding with liability in the remaining half-day was unfair, particularly because the original listing had been for two days and the defendants were not prepared to address liability.
3. The proposed amendment materially changed the legal basis of the claim by reintroducing restitution after that claim had been abandoned in successive pleadings. It could require different primary facts and disclosure. The claimant’s evidence also did not clearly establish total failure of consideration, and the company was not apparently the recipient of the £30,000.
4. The judge gave insufficient weight to the prejudice caused by the claimant’s solicitors’ late and incomplete delivery of the trial bundle. Earlier disclosure did not make the bundle immaterial: it was the advocate’s fundamental working tool for trial preparation.
5. The first defendant’s absence did not justify proceeding. Counsel’s advice that attendance was unnecessary had been given on the assumption that the hearing concerned remedy only. The general discretion to manage cases, costs and public resources could not answer the specific unfairness created by the unexpected liability trial.
6. The re-amendment was not objectionable in principle and might be permitted on a timely application. It could not, however, be upheld in the circumstances in which it had been made, after the adjournment had been refused and counsel had withdrawn.

• Court of Appeal (Civil Division), [2014] EWCA Civ 341: allowed the appeal, set aside the judgment and re-amendment order, and remitted the case for trial.
• Wrexham County Court, His Honour Judge Perry, 7 March 2013: granted relief from the earlier order, refused an adjournment, allowed re-amendment and entered judgment for £30,000 against both defendants.