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

The liquidator of D.W.B. Waste Management Limited sought declarations and repayment orders against the company’s sole director for alleged under-declaration of VAT, unlawful payments and substantial cash withdrawals, relying on duties under the Companies Act 2006 and provisions of the Insolvency Act 1986 (notably s.212(3) and s.238). The hearing before ICC Judge Barber on 4 February 2025 concerned an application to adjourn the two-day trial because the respondent had only just secured replacement counsel through Advocate and suffered from mild cognitive impairment and other health issues.

The judge applied the Civil Procedure Rules (CPR) overriding objective (CPR r.1.1) and relevant authorities on late adjournment applications (including Fitzroy Robinson, Levy v Ellis-Carr and Bilta). The medical material did not meet the threshold for an adjournment on pure medical grounds, but the court found that refusal to adjourn would produce an unfair trial because the respondent would be substantially disadvantaged by the late change of representation, compounded by his vulnerability (literacy problems and mild cognitive impairment) and the volume and complexity of the materials to be digested by newly instructed counsel. The judge therefore adjourned the trial to enable proper preparation, consideration of a possible contribution/joinder against a third party (Mr Rozario) and to permit implementation of reasonable adjustments at trial.

Background and parties: D.W.B. Waste Management Limited was restored to the Register and wound up; Ms Louise Mary Brittain was appointed liquidator and issued proceedings against Mr David John Choppen, the company’s sole director. The liquidator alleged significant under-declared VAT assessed by HMRC, unlawful payments to the director of £69,000 and cash withdrawals of £286,180 and sought declarations and orders for repayment under Companies Act 2006 duties and the Insolvency Act 1986 (including s.212(3) and s.238).

Procedural posture and dispute at hand: The trial was listed for 4–5 February 2025. The respondent, who has mild cognitive impairment, had relied on Advocate to obtain counsel. His originally instructed advocate became unavailable in November 2024 and, after a delay in allocation by Advocate, replacement counsel was only secured at the end of January 2025. The respondent applied to adjourn the trial so that replacement counsel could properly prepare; medical evidence was produced but did not, in the court’s view, justify an adjournment on medical grounds alone.

Issues for determination:

• Whether an adjournment should be granted under CPR r.3.1 having regard to the overriding objective (CPR r.1.1) and authorities on last-minute adjournments;
• Whether the respondent’s medical evidence established that he could not participate in the trial (engaging the Levy v Ellis-Carr threshold for medical adjournments);
• Whether the respondent should be treated as a vulnerable party under CPR PD 1A and, if so, whether that militated in favour of adjournment or other reasonable adjustments; and
• Whether late authorisation from Advocate to advise on a contribution claim against a third party (Mr Rozario) justified or contributed to the need for an adjournment.

Court’s reasoning and outcome: The judge found that the medical evidence did not meet the Levy threshold for an adjournment on medical grounds because it did not state that the respondent was presently unable to participate or give evidence or identify reasonable adjustments. However, applying guidance in Fitzroy Robinson and Bilta, the judge concluded that a refusal to adjourn would lead to an unfair trial: (a) the respondent was not responsible for the delay in obtaining new counsel; (b) he is a vulnerable party (literacy problems and mild cognitive impairment) engaging CPR PD 1A; (c) newly instructed counsel had insufficient time to prepare, given the volume and complexity of the bundles; and (d) the potential significance of a contribution/joinder against Mr Rozario (whose conduct and unexplained withdrawals at other companies were materially relevant) meant additional preparation could change the issues and outcomes. The judge granted the adjournment to allow proper preparation, consideration of contribution/joinder, and time to arrange reasonable adjustments for trial.

The court granted the respondent’s application for an adjournment of the trial. Although the medical evidence did not meet the threshold for an adjournment on medical grounds, the judge concluded that refusal to adjourn would result in an unfair trial because new counsel had been instructed only at the last minute, the respondent is a vulnerable party (literacy difficulties and mild cognitive impairment) and counsel required adequate time to prepare, including consideration of a potential contribution/joinder against a third party. The trial was therefore adjourned to enable proper preparation and to allow reasonable adjustments to be arranged.