NMC Health PLC v Ernst & Young LLP

On an application to adjourn a fixed trial, the central question is whether proceeding on the existing timetable would produce an unfair trial in all the circumstances. The assessment is fact-sensitive and does not depend on mechanically applying a checklist.

The court must balance the applicant’s ability to prepare and present its case fairly against prejudice to the other party and the public interest in maintaining trial dates. A fair hearing does not confer unlimited preparation time. Where the necessary work can reasonably be completed within an adjusted timetable, the court may preserve the fixture. Litigation funding concerns may form part of the balance but will not ordinarily determine the application alone.

NMC Health PLC, in administration, brought proceedings against Ernst & Young LLP. Ernst & Young applied to adjourn a 15-week Commercial Court trial fixed to begin in April or May 2025.

The application relied principally on the late emergence of audit documents and the time said to be required by Ernst & Young’s audit and forensic accounting experts to prepare their reports. NMC submitted that the experts had already had substantial time to work on the case and that the remaining work could be completed within the existing timetable, subject to an adjustment to the start date.

The central issue was whether proceeding with the trial would be unfair to Ernst & Young, having regard also to prejudice to NMC and the public interest in preserving a long-standing trial fixture.

1. Application dismissed. The trial was not adjourned. The court concluded that the work required by Ernst & Young’s experts could and should be completed within a timetable enabling the trial to proceed, with an adjustment to its start date.
2. Under Civil Procedure Rules 1998, CPR 3.12(b), the discretion to adjourn is exercised in accordance with the overriding objective, including the need to ensure that the parties are on an equal footing so far as practicable under CPR 1.1(2)(a).
3. The governing question is whether, if the trial proceeds, it will be fair in all the circumstances. That assessment is fact-sensitive and is not made by mechanically applying a particular checklist. If refusal of an adjournment would make the trial unfair, an adjournment should ordinarily be granted unless that unfairness is outweighed by irremediable injustice to the other party.
4. The court must balance the need to give the applicant a reasonable opportunity to prepare and present its case against the prejudice caused by delay and the public interest in maintaining fixed trial dates. A fair hearing does not entitle a party to unlimited preparation time, particularly where delay would postpone resolution of the dispute or disrupt a fixture to which the parties and the court have long worked.
5. On the evidence, the late documents and asserted deficiencies in the opposing expert and witness evidence did not make the existing timetable unfair. The experts were not starting from nothing, and the case was not so unusual as to justify the substantial extensions sought. The prejudice to NMC from delay, including uncertainty over additional litigation funding and the possible loss of incurred brief fees, further supported refusal of the application.
6. The court considered the existence of third-party litigation funding as part of the overall circumstances, but did not treat it as decisive. The approach in Rowe v Ingenious Media Holdings Plc was concerned with a different issue and was of limited assistance on this application.