Cerys Ashley v Benedict Cela Musa

Medical grounds for vacating or adjourning a trial require sufficiently particular, current and reasoned medical evidence. The court must also balance the explanation for any late amendment against prejudice, duplication of work and the risk to the trial date.

The Equality Act 2010 does not apply to a judicial function through section 29, because Schedule 3 excludes judicial functions from that provision. Section 15 may apply in principle, but refusal of an adjournment is not discrimination merely because a party has a disability. The court must ask whether the unfavourable treatment was because of something arising from the disability and, if so, whether it was a proportionate means of achieving a legitimate aim.

The petitioner brought an unfair prejudice petition concerning CWM Care Limited. Shortly before the listed trial, she sought a three-month stay or a further adjournment so that she could recover from ill health, obtain assistance and prepare applications to amend her petition, obtain further disclosure and call an additional witness.

She relied on dyslexia, anxiety and depression and referred for the first time to the Equality Act 2010. The existing medical material comprised an educational psychologist’s report from 2008 and a GP letter from 2022. The central issues were whether the hearing should be adjourned, whether the medical evidence was sufficient, and whether the Equality Act required a different result.

1. The application for a three-month stay or any further adjournment was refused. The court also declined to adjourn merely to allow the petitioner to complete formal applications.

2. Medical evidence relied upon to justify an adjournment should identify the medical attendant, explain familiarity with the party’s condition, describe the condition and the features preventing participation, provide a reasoned prognosis, and give confidence that the opinion follows proper examination. The evidence here was historic, insufficiently particular and contained no prognosis. The principles in Levy v Ellis-Carr were applied, having been endorsed by the Court of Appeal in Forrester Ketley v Brent and Bruce v Wychavon District Council.

3. In assessing a very late amendment or related application, the court must consider the lateness and explanation for it, the clarity of the proposed amendment, prejudice to the opposing party, duplication of work, disruption to the litigation and the effect on the trial date. An amendment threatening the trial date may provide an overwhelming reason for refusal. The court did not decide any substantive amendment application because none had been formally made.

4. Section 29 of the Equality Act 2010 does not apply to the exercise of a judicial function. The reasoning in R (on the application of Amanda Howard) v The Official Receiver was adopted by analogy, and Schedule 3 paragraph 3 excludes a judicial function from section 29.

5. Section 15 was considered on the assumption that it could apply. Refusal of an adjournment was unfavourable treatment, and dyslexia was a disability, but the refusal was not because of something arising from the disability. The decision was based on the extreme lateness of the applications, the time already available and the prejudice to the respondent, the court and other court users. Alternatively, refusal was a proportionate means of achieving the legitimate aim of ensuring a fair trial.

6. The petitioner remained entitled to issue a formal application, but was warned that its prospects of success at that stage were very small.

Not an appeal. The judgment records procedural directions and a pre-trial review in the same proceedings, but no earlier judgment or appellate decision.