Axnoller Events Ltd v Brake & Anor

An adjournment application is governed by the overriding objective and the interests of a fair trial. The question is whether proceeding would be fair in all the circumstances, assessed factually rather than by applying a rigid checklist. A party’s illness, particularly where the party is also an important witness and advocate, may make an adjournment necessary. Equality of arms does not require equality of advocacy skills, training or experience. The court cannot properly refuse an otherwise necessary adjournment merely because the applicant will not give an undertaking on a collateral matter. Such collateral relief should be sought by a formal application supported by evidence.

The defendants sought adjournments of two forthcoming trials. They had lost their retained counsel shortly before trial, had been unable to secure replacement representation, and Mrs Brake, who would otherwise conduct the advocacy and give important evidence, was seriously unwell. The claimant and the other opposing parties did not unconditionally oppose adjournment and proposed conditions concerning stays, the use of an arena and undertakings relating to a cottage.

The court considered whether the trials could fairly proceed, how they should be relisted, and whether the proposed collateral conditions could properly be imposed as terms of an adjournment.

1. Adjournment and fairness. The court had power to adjourn under CPR rule 3.1(2)(b), subject to the overriding objective. The applicant bears the burden of demonstrating the need. The governing question was whether proceeding would be fair in all the circumstances. That assessment was fact-sensitive and not governed by a mechanistic checklist. The importance of the illness, the absence of professional representation, Mrs Brake’s role as advocate and witness, the complexity and length of the trials, and the prejudice to both sides were material.
2. The trials could not fairly proceed as listed. Mrs Brake was seriously unwell and would have had to represent the family in two complicated, fully contested trials while also giving evidence. The court therefore adjourned both trials, despite the general reluctance to break an established trial fixture and the opposing parties’ Article 6 rights.
3. Equality of arms. A fair trial did not require the parties to have equal advocacy skills, training or experience. The fact that the opposing parties had leading and junior counsel did not mean that the defendants had to obtain equivalent representation.
4. Collateral conditions. The court could not properly conclude that a trial would be unfair, but then refuse an adjournment because the applicant would not give an undertaking on a collateral matter. Applications concerning the arena injunction or the cottage should be made formally, supported by evidence, and dealt with in the usual way.
5. The possession trial was relisted for three weeks from 6 September 2021 and the eviction trial for three weeks from 4 October 2021, both before the judge, with a five-business-day gap, a single trial bundle and judgment in both trials at the same time. Other proceedings within the court’s jurisdiction were stayed, subject to necessary directions.

First-instance decision on paper. The two forthcoming trials were adjourned and relisted on revised terms.