Chai v Peng

On an adjournment application, the court must assess the comparative prejudice caused by delay to each party. A short delay may be justified where it preserves effective representation by leading counsel who has conducted the litigation throughout. The court must consider the medical evidence, duration and wider consequences of delay, the parties’ need for finality, and any effect on linked hearings. Where a new point is raised at very short notice and requires evidence, fairness may require the court to decline to determine it until the affected party has had a proper opportunity to respond.

The wife appealed against a jurisdiction finding made by Bodey J in October 2014 during contested divorce proceedings involving parallel proceedings in England and Wales and Malaysia. Her leading counsel became seriously ill, and she sought to adjourn the appeal from July to October 2015. The husband opposed the application, relying on delay, age, health and the need for finality.

A further application concerning the use of part of a monthly payment for Malaysian legal costs was also raised. The issue had been introduced shortly before the hearing and required documentary evidence. The questions were whether the appeal should be adjourned and whether the further application could fairly be heard immediately.

1. Adjournment. The application to vacate the July fixture and relist the appeal in the week of 19 October was granted. The decisive issue was comparative prejudice. The delay of approximately three or four months was acceptable in the circumstances.
2. The court relied on the medical evidence and the likelihood that the wife’s leading counsel would be available in October. His continuous involvement meant there was a significant difference between his presenting the appeal and the case being taken over by replacement counsel or junior counsel alone. The court also considered finality, the parties’ age and health, prior delay and litigation conduct, and the impact on the linked first-instance hearing.
3. Further application. The court declined to hear the husband’s application concerning the use of part of the £60,000 monthly payment for Malaysian legal costs. He relied on section 22(ZA) of the 1973 Act, contending that the expenditure was impermissible and an abuse of the order.
4. The point could not fairly be determined on approximately 36 hours’ notice. The wife reasonably required transcripts, correspondence and other documents to answer it. The application was adjourned for hearing at High Court level, preferably before Bodey J or Roberts J, with no further order by the Court of Appeal.

• Court of Appeal (Civil Division): Appeal from a jurisdiction finding made by Bodey J in October 2014. The appeal was adjourned from July 2015 to the week of 19 October 2015. A related application was directed to be heard at High Court level.