MICHAEL WILSON & PARTNERS LTD v EMMOTT & ORS

An adjournment on medical grounds requires properly served, reasoned medical evidence addressing the condition, its effect on participation, prognosis and possible accommodations. Effective participation depends on the medical condition, the nature of the hearing, the issues and the party’s role. Where attendance is not central and representation or remote participation is practicable, an adjournment may be refused. Interlocutory applications must be brought to an end. Further evidence in reply is permissible only where it genuinely and succinctly answers the evidence in answer; otherwise it may be excluded or given limited weight. Case-management decisions will be disturbed on appeal only in exceptional circumstances.

The applicant sought to adjourn a four-day hearing of the respondents’ strike-out applications. The application was based on Mr Wilson’s medical condition and the alleged need to answer further evidence said to exceed proper reply evidence.

The medical material was minimal, had not been properly served and did not explain why Mr Wilson could not attend remotely or instruct counsel. The applicant also sought permission for further evidence. The central issues were whether the evidence justified an adjournment and whether further reply evidence should be permitted.

1. Medical adjournment. The application was dismissed. The principles in Levy v Ellis-Carr [2012] EWHC 63 (Ch) require evidence identifying the medical attendant, the condition, the features preventing participation, a reasoned prognosis and an independent opinion based on proper examination. The material relied upon did not satisfy those requirements and had not been properly served.
2. Following Decker v Hopcraft [2015] EWHC 1170 (QB), effective participation must be assessed in the context of the hearing, the issues and the party’s role. This was an interlocutory strike-out application based on written evidence. Mr Wilson would not give oral evidence and counsel was retained. His attendance was therefore not central, and remote participation, breaks and instructions to counsel could accommodate any genuine difficulty.
3. Further evidence. The request was refused. The Commercial Court Guide contemplates evidence in support, evidence in answer and a short period for true reply evidence. It does not contemplate further evidence absent good reason. The judge would control the evidence at the substantive hearing and would exclude material that was not genuinely and succinctly responsive. Incorporating lengthy statements from earlier proceedings by reference would require particular justification.
4. The hearing was to proceed as directed. Permission to appeal was refused. The decision was a case-management decision based on the evidence before the court, and there was no realistic prospect of showing that no reasonable judge could have reached it.

Not stated in the judgment.