Bilta (UK) Ltd & Ors v Tradition Financial Services Ltd

On an application to adjourn because of illness, the controlling question is whether proceeding with the trial would be fair in all the circumstances. The inquiry is fact-sensitive and is not governed by a mechanistic checklist. There is no sharp distinction between an absent party and an absent important witness. The significance of missing oral evidence depends on the issues, the witness’s importance, the available evidence, and the prospect of later attendance.

If refusing an adjournment would cause an unfair trial, the court should ordinarily adjourn despite inconvenience. Refusal may nevertheless be justified by injustice to the opposing party that cannot be compensated. On appeal, the court must itself be satisfied that refusal would not cause unfairness.

Five companies in liquidation and their liquidators claimed that Tradition Financial Services Ltd had dishonestly assisted an alleged VAT fraud connected with trading in European Union Emissions Trading Allowances. The claim alleged dishonesty by, among others, a senior manager, Ms Mortimer.

Marcus Smith J dismissed TFS’s application to adjourn the imminent five-week trial: [2021] EWHC 36 (Ch). Ms Mortimer could not attend because of serious illness, but her improved prognosis indicated that she would probably be able to give live evidence after October 2021. TFS appealed, contending that a trial without her oral evidence would be unfair.

The central issue was whether fairness required an adjournment where an important non-party witness accused of dishonesty could not presently attend but was likely to recover.

1. Appeal allowed. The judge had approached Ms Mortimer’s absence by balancing the importance of her evidence against the disruption caused by removing a substantial trial from the list. The correct question was whether the resulting trial would be fair. That error required the Court of Appeal to determine fairness for itself.

2. The governing inquiry on an illness-based adjournment is whether proceeding would produce an unfair trial. The inquiry is fact-sensitive. It is not controlled by a checklist, and modern procedures mean that the weight of missing oral evidence will vary between cases. Nevertheless, there is no principled sharp distinction between the absence of a party and the absence of an important witness. If refusal would make the trial unfair, an adjournment should ordinarily follow unless it would cause uncompensatable injustice to the other side.

3. The court approved the fairness-based approach in Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101 and related authorities. An appellate court is not confined to a narrow Wednesbury review. It must itself be satisfied that refusal of an adjournment would not cause injustice. More than one outcome may be fair, but some circumstances admit only one fair result.

4. Ms Mortimer was an important witness in a case turning on alleged dishonesty and inferences from recorded calls. Live evidence and cross-examination could materially assist in assessing her state of mind. Her statement could be admitted as hearsay, but its weight would be reduced without oral evidence. Since she was likely to be available after October 2021 and the claimants had shown no uncompensatable prejudice, it would be unfair to deny TFS the opportunity to call her.

5. The whole trial was adjourned to the first available date after 1 October 2021. The court directed the parties to invite the Chancellor to consider expedition. Nugee LJ also observed, without deciding the point, that the court may have regard to the fairness owed to a witness facing grave personal and professional consequences from adverse findings.

• Court of Appeal (Civil Division) Allowed TFS’s appeal and directed that the trial be adjourned to the first available date after 1 October 2021: [2021] EWCA Civ 221.
• High Court of Justice, Financial List (ChD) Marcus Smith J dismissed TFS’s application to adjourn the trial: [2021] EWHC 36 (Ch).