EB Pension Fund & Ors v Nicholas Froggatt

An adjournment application must be determined by asking whether proceeding would be fair in all the circumstances. The assessment is fact-sensitive and should not be reduced to a mechanistic checklist. Particular weight may be required where a party would otherwise face substantial difficulty conducting a complex hearing without representation, especially where that difficulty results from court administration. On appeal, the court must satisfy itself that refusal of an adjournment did not cause injustice or unfairness. Adequate reasons are required so that the parties and any appellate court can understand the decision, and so that the judge demonstrates that the relevant fairness factors were considered.

The appellants appealed a County Court decision refusing to adjourn a renewed permission-to-appeal hearing. The second appellant had sought time to obtain legal representation after the court failed to process her notice removing her former solicitors from the record. That failure prevented her from instructing direct-access counsel. The Recorder refused the adjournment without reasons and proceeded to refuse permission to appeal.

Permission was granted to appeal on the ground that an adjournment should have been allowed to enable representation. The central issues were whether the adjournment test had been properly applied and whether the absence of reasons and the procedural circumstances created a risk of injustice.

1. Appeal allowed. The refusal to adjourn was quashed and the matter was remitted to the County Court for rehearing.
2. Under CPR Rule 3.1(2)(b), the power to adjourn must be exercised in furtherance of the overriding objective. The guiding question is whether the hearing would be fair in all the circumstances. The inquiry is fact-sensitive and does not involve mechanical application of a checklist, as explained in Bilta (UK) Ltd (In Liquidation) v Tradition Financial Services Ltd [2021] EWCA Civ 221.
3. The appellate court must itself be satisfied that refusal of an adjournment did not cause injustice or unfairness. Relevant circumstances included the complexity of the hearing, the party’s genuine efforts to secure representation, the fact that representation was unavailable because of court administrative failure, and the resulting prejudice. Bowden v Homerton University Hospital NHS Foundation Trust [2012] EWCA Civ 245 provided a closely analogous example in which insufficient weight had been given to the difficulty faced by a litigant in person.
4. The Recorder had not adequately engaged with the reasons for the application or explained why the prejudice was outweighed by any countervailing consideration. The absence of reasons also made it impossible to determine what test had been applied or whether unfairness had been considered. The duty to give adequate reasons, discussed in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409, is a requirement of due process and facilitates an effective appeal.
5. The rehearing should, if practicable, be allocated to a full-time judge. The jurisdiction issue was left undetermined.

• High Court (Chancery Division): appeal from the County Court at Willesden allowed. The refusal to adjourn was quashed and the matter remitted for rehearing.
• County Court at Willesden: Recorder Aldous KC refused an adjournment on 13 October 2023 and refused permission to appeal.