Alexander Kuznetsov v Edwards Duthie Shamash (a firm) & Ors

A medical adjournment application must be assessed against the quality of the medical evidence and the whole procedural history. A bare fitness-for-work certificate may not establish inability to attend or conduct a trial. Under Civil Procedure Rules 1998, r 39.3, where a claimant fails to attend trial and has no admissible evidence capable of proving an essential element of the claim, the court may strike out rather than conduct a futile trial in the claimant’s absence. In a professional negligence claim, breach of duty is indispensable. Serious non-compliance with directions, repeated non-attendance and other conduct outside the norm may justify indemnity costs.

The claimant brought a professional negligence claim against solicitors and an individual fee earner. He alleged that they should have advised him to plead an automatically unfair dismissal claim based on protected disclosures in proceedings arising from his employment by the Royal Bank of Scotland.

The claim was listed for trial on 18 March 2024 and relisted for 20 March after the claimant failed to attend. He applied for an adjournment on medical grounds, relying principally on a short GP fitness-for-work certificate. The defendants opposed the application and sought strike-out under CPR 39.3, relying on the claimant’s failure to comply with orders requiring witness evidence, a schedule of loss and trial bundles.

The court determined the adjournment, strike-out and costs applications.

1. Adjournment. The claimant’s medical evidence was insufficient. It did not explain his condition in adequate detail, provide a reasoned prognosis, or identify why he could not attend or conduct the trial, including remotely. The court was entitled, and required, to assess the evidence in the wider context, including the claimant’s previous conduct, recent litigation activity, non-compliance with orders and failure to provide further evidence. The adjournment application was refused.

2. Strike-out. The claimant failed to attend on both listed trial dates. Under CPR 39.3(1)(b), the court considered whether to proceed in his absence. He had served no witness evidence despite directions and had not sought relief from sanctions. The defendants’ evidence materially contradicted the pleaded allegation that the claimant had instructed the fee earner about whistleblowing. Since the claimant bore the burden of proof and had no admissible evidence capable of establishing breach of duty, a trial would have been futile. The claim was therefore struck out.

3. The court distinguished the approach applicable to an ordinary CPR 3.4 strike-out application, where pleaded facts are generally assumed to be true and a mini-trial is inappropriate. This was a CPR 39.3 application at trial, requiring consideration of the admissible evidence actually available.

4. Costs. Costs followed the event. The defendants’ costs were ordered to be subject to detailed assessment and assessed on the indemnity basis. The claimant’s repeated failures to comply with directions, failures to attend trial and other conduct were outside the norm. Two-thirds of the costs were payable on account, with a set-off for £1,266 previously ordered against the defendants and payment within 14 days of the sealed order.

5. The claimant was reminded that CPR 39.3 permits an application to set aside, requiring promptness, a good reason for non-attendance and a reasonable prospect of success.