Manchester Property Development Holdings & Anor v Kuit Steinart Levy LLP

An application to adjourn a trial because of leading counsel’s illness requires a fact-sensitive assessment of whether proceeding would be fair. The court must apply the overriding objective and balance fairness to both parties. There is no mechanistic checklist.

Where the existing timetable would deprive a party of a proper opportunity to prepare and present a complex case, the resulting trial may be unfair. Delay, additional costs, court resources and funding difficulties are relevant, but potential prejudice to the other party does not automatically require refusal. The decisive question is whether the prejudice caused by refusing the adjournment outweighs the prejudice caused by granting it.

The defendant applied on 9 January 2025 to adjourn a professional negligence trial listed to begin on 20 January 2025. The application arose because the defendant’s leading counsel had become ill and could not appear.

The claim concerned advice given in connection with a substantial loan facility and involved eight lay witnesses, six experts and a lengthy, complex trial. The claimants opposed the application, relying on delay, additional costs, funding difficulties and potential prejudice to their ability to continue the proceedings. The central issue was whether the defendant could receive a fair trial without its leading counsel within the existing trial window, and, if not, whether the claimants’ resulting prejudice justified refusing an adjournment.

1. Application granted. The trial was adjourned because the defendant could not have a fair trial on the existing timetable or within the existing trial window.
2. Under CPR 3.12(b), the court has a discretion to adjourn a trial. That discretion must be exercised in accordance with the overriding objective. The governing question is whether proceeding would be fair in all the circumstances. The assessment is fact-sensitive and does not involve mechanical application of a checklist.
3. The court must weigh the competing consequences of granting or refusing an adjournment. A refusal which makes the trial unfair should ordinarily lead to an adjournment, unless the resulting injustice to the other party is uncompensatable and outweighs the unfairness.
4. In this case, a short delay would not allow alternative leading counsel to be instructed. Nor would it give the defendant’s experienced junior counsel sufficient time to assume responsibility for cross-examining all factual and expert witnesses and leading a complex trial. The issue was the preparation required by the nature and scale of the case, not any lack of ability on the part of junior counsel.
5. The likely delay, logistical consequences and additional costs were substantial. However, the long passage of time meant that witness-memory prejudice was not significant. The claimants’ funding risks, including possible further funding and ATE costs, were potential rather than established irremediable prejudice. They did not outweigh the defendant’s entitlement to a fair trial.
6. The court recognised the importance of oral evidence and skilled, properly prepared cross-examination. The balance therefore lay in granting the adjournment.