Avonwick Holdings Ltd v Azitio Holdings & Ors

An adjournment of a substantial commercial trial requires an objective assessment of the overall justice of the case. The court must weigh the prejudice and risks created by delay against the prejudice that may result if the existing trial date is maintained. A party’s inability to call an important witness does not automatically justify an adjournment, particularly where the witness’s participation may be managed fairly through procedural directions. The court should also consider legitimate expectations, prejudice to other litigants and asset holders, delay, costs, evidential deterioration, court authority and the risk that an adjournment will yield no substantial benefit. A trial should remain listed where a fair and workable pre-trial timetable can still be achieved.

The claimant’s substantial Commercial Court proceedings arose from business dealings involving several Ukrainian businessmen and associated companies. One defendant, who was detained in Russia in connection with criminal proceedings, was said to be an important factual witness. An adjournment was sought to June or July 2020, and later to dates extending to January or February 2021, on the basis of his detention and alleged trial unreadiness.

The court considered whether his absence justified postponing the trial and whether the remaining witness, expert and pre-trial stages could fairly be completed before the existing October/November 2019 fixture.

1. The applications to adjourn were dismissed. The court assessed the matter from the perspective of all parties and the court, rather than treating the application as determined by the interests of the detained witness alone.
2. The possible release of the witness before trial would not necessarily require an adjournment. Fairness could be protected by permitting him to participate as a witness after the ordinary exchange of statements, with appropriate procedural relief if required. The court anticipated that, provided proper safeguards were observed, an application for relief to enable him to give evidence would ordinarily be favourably considered.
3. If the Russian charge continued and the witness had to face trial there, there was no sensible prospect of obtaining his evidence for the English trial. The alternative possibility of temporary release during further investigation was speculative. An adjournment until January 2021 would therefore have been required to maximise the prospect of obtaining his evidence.
4. Balancing the competing considerations, the adjournment created the greater overall risk of injustice. It would prolong uncertainty, prejudice other litigants and Prandicle’s interest in the Hyatt Hotel Kiev, increase costs, risk deterioration or loss of evidence, and potentially undermine the authority of the court. The prejudice to the applicant was not material, while the prospect that the detained witness would ultimately provide useful evidence remained uncertain.
5. The separate case-management ground also failed. The remaining exchange of factual and expert evidence, expert meetings, joint memoranda and pre-trial review could be completed fairly within a revised timetable. Primary witness statements were to be exchanged by 1 March 2019, reply statements by 22 March, primary expert reports by 7 June, expert meetings by 21 or 28 June, joint memoranda within a week thereafter, and any permitted supplementary reports by 26 July.