Van Zuylen v Whiston-Dew & Anor

The court may make reasonable procedural accommodations for a party experiencing mental-health difficulties, including permitting remote participation in a substantive hearing. The accommodation must be supported by sufficiently reliable evidence and must not become a means of causing indeterminate or unjustified delay. Where further medical evidence is required, the court may expect a full signed report from a suitably qualified physician and may allow the other parties an opportunity to challenge it. The court must remain alert to the possibility of tactical exaggeration while making appropriate arrangements to reduce the burden of the proceedings.

The first defendant applied on 21 May 2021 to be excused personal attendance at a five-day substantive hearing listed to begin on 7 June 2021. He was detained in prison and relied on evidence concerning depression and anxiety. He submitted that transfer to a prison nearer the court, and physical attendance, would increase his anxiety and impair his concentration.

The claimant did not oppose the application but objected to any further adjournment. The second defendant supported remote participation and also wished to avoid delay. The court therefore had to determine whether the defendant should participate remotely and what safeguards were appropriate concerning the medical evidence and continuation of the trial preparations.

1. Application granted. The first defendant was permitted to participate remotely in the five-day substantive hearing. The court approved an order based on his draft, with amendments.
2. The court accepted the defendant’s evidence about his mental state for the purposes of the application. It considered that the defendant, together with his medical advisers, was best placed to judge whether physical attendance or participation through a screen would be less stressful. The court had previously changed the hearing from a CVP hearing to a physical hearing because a multi-day trial involving witness evidence would generally be more satisfactory in person and might be less stressful for the claimant if the defendant attended physically.
3. The medical evidence supplied for the present application and for an earlier adjournment application was below the standard expected for an important matter concerning the conduct of proceedings. The court had reluctantly accepted it in the circumstances, but stated that any future application requiring medical evidence should be supported by a full signed report addressed to the court by a suitably qualified physician. The court might also provide an opportunity for the claimant and second defendant to challenge that evidence.
4. Reasonable accommodations should be considered for parties experiencing mental-health difficulties, but such difficulties could not be used to create indeterminate delay. The court had to remain vigilant against unjustified delay and the possibility that medical difficulties might be exaggerated for tactical reasons.
5. Arrangements were to be made for suitable audio-visual facilities at the Rolls Building and for the prison to accommodate the remote hearing. The parties were to continue preparing for trial pending any grant of permission by the Court of Appeal in relation to the defendant’s separate application concerning the Nevis Islands. Costs of the application were costs in the case.

The judgment records that the first defendant had applied to the Court of Appeal for permission to appeal an earlier decision dismissing his application for the matter to be dealt with by the courts of the Nevis Islands. No citation for that decision or for any Court of Appeal decision is stated. Pending any grant of permission, the parties were directed to continue preparing for trial.