Kamran Attaei v Nahid Alsharif & Ors

An appellate court should interfere with a case-management decision only for an error of principle, material omission or wrongful consideration, or an untenable balancing of factors. An adjournment application is determined by fairness in all the circumstances. Medical evidence must address the condition, its effect on participation and prognosis. A claim should not be struck out unless a ground under CPR 3.4(2) is established. Strike out is a draconian sanction of last resort.

The claimant appealed from HHJ Saggerson’s order dated 11 August 2023. The County Court had refused to vacate a pre-trial review and trial, struck out his breach of contract claim, entered judgment for the defendants and ordered costs.

The claimant, aged 78, relied on medical evidence showing that surgery was listed on the trial date and that illness had prevented his attendance. He had also applied for help with fees. The appeal concerned correspondence sent on his behalf, adjournment, and strike out.

1. Appeal allowed. The order dated 11 August 2023 was quashed and the case remitted to the County Court for a fresh pre-trial review if appropriate and re-listing for trial.
2. The refusal to adjourn the pre-trial review was within the permissible case-management range. The evidence did not establish that the claimant could not participate in a one-hour remote hearing.
3. The refusal to adjourn the trial was wrong. Applying the fact-sensitive fairness approach in Bilta (UK) Ltd (in liquidation) v Tradition Financial Services Ltd [2021] EWCA Civ 221, the court had to weigh the medical evidence, scheduled surgery, personal attendance, fair-trial rights, witness availability and the limited prejudice caused by delay.
4. The emails from the claimant’s friend and daughter merely directed the judge to material already filed. They could not properly justify an adverse inference.
5. The strike-out decision was wrong. The help-with-fees application was not inadequate on its face, and the evidence did not justify an inference that the claimant was concealing his finances. Fairness required an opportunity to explain before imposing strike out.
6. The respondents were ordered to pay the claimant’s appeal costs on the standard basis.

• High Court (King’s Bench Division): appeal from the order of HHJ Saggerson dated 11 August 2023; appeal allowed, order quashed and case remitted.