Louise Mary Brittain v David John Choppen (Re D.W.B. Waste Management Limited)

A trial adjournment is justified where proceeding would produce an unfair trial, assessed by reference to the overriding objective and all the circumstances. The court must consider equality of arms, the parties’ ability to participate and give their best evidence, the reasons for delay, the consequences of adjournment, and the effect on court resources. Medical evidence may fail to justify an adjournment on medical grounds while the wider circumstances nevertheless make an adjournment necessary for fairness. A party’s vulnerability, including literacy difficulties, cognitive impairment and mental ill-health, requires practical consideration of reasonable adjustments and adequate preparation time for representation.

The liquidator sought declarations and repayment orders against the respondent, the company’s sole director, concerning alleged VAT under-declaration, payments to himself and cash withdrawals. The trial was listed to begin on 4 February 2025. The respondent’s publicly funded barrister became unavailable in late 2024, and replacement representation was secured only on 31 January 2025. The respondent had mild cognitive impairment, severe anxiety and depression, and significant literacy difficulties. He applied for an adjournment so that counsel could prepare properly and advise on a possible contribution claim against a person alleged to have directed the company’s affairs. The central issue was whether proceeding with the trial would be unfair.

1. Disposition. The trial was adjourned. Although the medical evidence did not satisfy the threshold for an adjournment on medical grounds, the court concluded that refusal would lead to an unfair trial.
2. Under CPR rule 3.1(2)(b), the discretion to adjourn must be exercised consistently with the overriding objective in CPR rule 1.1. The court must consider whether the parties are on an equal footing, whether they can participate and give their best evidence, the parties’ conduct and reasons for delay, the extent to which delay can be overcome, the consequences for each party and the court, and the effect on fairness and proportionality.
3. The guidance in Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 3070 (TCC) and Bilta (UK) Ltd (In Liquidation) v Tradition Financial Services Ltd [2021] EWCA Civ 221 was applied. Fairness is assessed in all the circumstances. Mere inconvenience or wasted costs to the other party or court users is ordinarily insufficient to refuse an adjournment.
4. The threshold requirements identified in Levy v Ellis-Carr [2012] EWHC 63 (Ch) were not met because the medical reports did not state that the respondent was unable to participate in or give evidence at trial. That conclusion did not determine the broader fairness question.
5. CPR 1A PD was engaged. The respondent’s literacy difficulties, mild cognitive impairment, severe anxiety and severe depression were factors capable of adversely affecting participation and evidence. The parties and the court had to consider reasonable adjustments, including document-reading assistance and more frequent breaks.
6. The respondent was not responsible for the late loss of representation and had attempted to secure an adjournment before trial. Given the volume and complexity of the material, the late instruction of counsel, and the respondent’s vulnerability, counsel required adequate preparation time. The potential significance of advice concerning a contribution claim and the role of Mr Rozario reinforced the fairness of adjournment, although that issue did not independently justify it.
7. The court considered that delay would have minimal impact on witness memory, that the allocated trial time could be used elsewhere, and that the applicant’s inconvenience and wasted costs did not outweigh the need for a fair trial.

Not applicable. The judgment was a first-instance case-management decision.