Simou v Salliss & Ors

An appellate court should interfere with a case-management decision refusing an adjournment only where it was plainly wrong and fell outside the generous ambit within which reasonable decision-makers may disagree. A procedural irregularity does not justify allowing an appeal unless it rendered the decision unjust in all the circumstances.

When ill health is relied upon, medical evidence should identify the practitioner, diagnosis, relevant symptoms, recent prognosis and basis for an independent opinion that participation is prevented. Even adequate medical evidence forms only part of the overall assessment. The court must balance effective participation and equality of footing against the trial’s progress, proportionality, previous conduct and the reliability of the evidence.

Two neighbouring boundary and right-of-way actions were tried together in the County Court at Brighton. The defendants, who were then unrepresented, sought adjournments because of the first defendant’s health. The first application was not expressly determined before the trial began. The second was refused after the first defendant became unwell during his evidence and attended hospital.

The trial judge found for the claimants in both actions. The defendants appealed against the final orders, contending that the two refusals denied them an effective opportunity to participate and that a retrial was required. The central issues were whether either refusal was outside the proper ambit of the judge’s case-management discretion and whether the failure expressly to determine the first application caused injustice.

1. Appeal dismissed. Henderson LJ, with whom Beatson LJ and Sir Terence Etherton MR agreed, held that neither challenge justified setting aside the final orders or directing a retrial.

2. The decision whether to adjourn a trial is a case-management decision. An appellate court may interfere only where the decision was plainly wrong, in the sense of falling outside the generous ambit within which reasonable decision-makers may disagree. That standard was supported by Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64 and Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743. Even a serious procedural irregularity warrants allowing an appeal only if the resulting decision was unjust in all the circumstances.

3. The first application should have been addressed expressly. The court office had accepted the informal application and indicated that the judge would decide it or give directions. At the beginning of the trial, the judge should at least have ascertained whether the application was maintained and invited submissions. The failure to do so was a procedural irregularity.

   That irregularity caused no injustice. It had previously been agreed, while the defendants were represented, that the first day would proceed without the first defendant and would be followed by a site visit. Proper directions would probably have postponed the decision until reliable medical evidence was obtained. By then, the first defendant had recovered sufficiently to participate fully, so the application would have been refused.

4. Medical evidence offered to show inability to participate should identify the medical attendant and that person’s familiarity with the patient, specify the condition and the features preventing participation, provide a recent prognosis and demonstrate an independent opinion based on proper examination. A medical report is not conclusive. It must be assessed with all the material, including the party’s previous conduct.

5. The second refusal fell within the judge’s wide discretion. He had to balance the first defendant’s symptoms and the hospital recommendation for rest against the advanced stage of the trial, the desirability of completing it within the allotted period and strong evidence that the defendants had supplied false information and attempted to engineer an adjournment. The first defendant’s subsequent return, completion of his evidence and conduct of the remaining trial reinforced the conclusion. The judge neither erred in principle nor reached a plainly wrong decision.

1. Court of Appeal (Civil Division): The appeal against the final County Court orders was dismissed unanimously. The first adjournment application had not been expressly determined, but that procedural irregularity caused no injustice. The second refusal was within the judge’s case-management discretion.

2. County Court at Brighton: His Honour Judge Coltart refused to adjourn the conjoined trial and subsequently gave judgment for the respective claimants in both actions. No neutral citation for that decision is stated.