Van Collem & Ors v Van Collem & Ors

Applications to adjourn a trial, or to set aside a strike-out for non-attendance, require careful evaluation of the evidence and the overriding objective. Under CPR 39.3(5), an applicant must show a prompt application, a good reason for non-attendance and a reasonable prospect of success at trial. Medical evidence should identify the condition, explain why it prevents participation, provide a reasoned prognosis and reflect an independent medical assessment. The court must consider whether reasonable adjustments could permit participation, the nature of the issues, the procedural history and prejudice to the other parties. A litigant in person and the final determination of substantive rights warrant caution, but do not remove the need for cogent evidence. A judge’s power to recall an unperfected judgment does not apply merely because a party later supplies material that could have been produced earlier.

The proceedings concerned a long-running dispute between the claimants and defendants, including Stephan van Collem, who was largely unrepresented. The trial had been adjourned several times and resumed on 3 July 2015. Stephan did not attend, and the court struck out his Defence under CPR 39.3(1)(c).

He subsequently applied to adjourn the trial and to set aside the strike-out, relying principally on medical difficulties, alleged confusion about the trial date, computer problems and alleged intimidation of an expert witness. The court had to decide whether the medical and other evidence established a good reason for non-attendance and whether the requirements of CPR 39.3(5) were satisfied.

1. Applications dismissed. The applications for an adjournment and to set aside the order striking out the Defence were dismissed. The strike-out remained in force.
2. The approach to an adjournment based on medical evidence is discretionary and governed by the overriding objective. The court must assess the particular circumstances, including the medical condition, the nature of the issues, the applicant’s required role, possible reasonable adjustments, prejudice, procedural history and whether the hearing concerns final determination of substantive rights. The court should exercise particular caution where a litigant in person relies on medical grounds for the first time and where refusal may determine the case.
3. Medical evidence must be cogent. It should identify the medical attendant and relevant familiarity with the patient’s condition, identify the condition and the features said to prevent participation, provide a reasoned prognosis and give the court confidence that the opinion is independent and based on proper examination. The court is not bound to accept such evidence.
4. Under CPR 39.3(5), the applicant had to establish all three requirements: promptness, a good reason for non-attendance and a reasonable prospect of success at trial. Promptness was accepted, and, adopting a cautious approach because the claimant had not sought summary judgment or strike-out, the Defence was treated as having a reasonable prospect of success for this application.
5. The medical material did not establish that Stephan’s condition prevented attendance or participation on 3 July, particularly with adjustments such as permitting him to remain seated. It did not identify the necessary medical detail or provide a reasoned opinion on inability to participate. His evidence also contained material inconsistencies, and his conduct before and after the hearing was inconsistent with the asserted inability to engage.
6. The evidence showed that Stephan knew the trial date and timetable. Computer difficulties and alleged intimidation of the expert did not provide a good reason for non-attendance. The circumstances did not fall within the jurisdiction to recall and reconsider an unperfected judgment, because there was no mistake or genuinely additional material requiring reconsideration.

Not stated in the judgment.