Simou v Salliss  EWCA Civ 312
Although this was not a casualty claim, the case raised interesting points in respect of what reasons are sufficient to adjourn proceedings.
The claim involved a boundary dispute and the two defendants, Mr and Mrs Salliss, acted as litigants in person. The defendants made an informal application during the week before the start of trial to adjourn the proceedings on the basis that Mr Salliss had been receiving treatment for bladder cancer and was not well enough to defend himself.
It was not clear whether this application ever reached the judge and on the first day of trial the application was refused and the judge proceeded with the trial in Mr Salliss’s absence.
During the second week of trial, a second application was made by the defendants to adjourn the trial on the basis that Mr Salliss was not in sufficient health. It was submitted that Mr Salliss had to go to hospital because he was in pain and experienced blood in his urine so the trial needed to be adjourned until he was well enough to give evidence.
The judge refused the second application and the defendants appealed the decision. The defendants submitted that the first application to adjourn the trial had not been properly considered or ruled upon by the judge. Whilst in respect of the second application, it was argued that the judge had focussed too heavily on a discharge letter from the hospital and had not considered the full position.
The Court of Appeal held that there had been a procedural irregularity as the trial judge had failed to address and deal with the first adjournment application. However, it was concluded that this irregularity had not caused any injustice to the defendants.
The Court of Appeal noted that it had been agreed at the pre-trial hearing that Mr Salliss would miss the first day of trial because of a hospital appointment and it was accepted that it would still be in everyone’s interests for the trial to proceed. As a result, there was no realistic prospect that the judge would have agreed to adjourn the whole trial if the adjournment application had been dealt with either before or on the first day of trial.
It was held that the most probable scenario was that the judge would have postponed making any decision on the first application until day three of the trial, and Mrs Salliss would have been directed to have obtained proper medical evidence in support of the application to adjourn the trial. The Court of Appeal noted that if the trial judge had given directions to this effect then it would have been apparent by day three of the trial that Mr Salliss had recovered and was well enough to play a full part in the trial. As a result, the Court of Appeal concluded that the first application for adjournment would have been refused in any event.
In respect of the second application, the Court of Appeal noted that there was strong evidence to suggest that the defendants had deliberately tried to engineer an adjournment by delaying the journey to the hospital, by pretending that papers had been stolen or mislaid and by providing misleading information to the barrister. It was held that the judge could not be criticised for his decision to refuse the second application. In particular, the discharge letter from the hospital showed that Mr Salliss was not suffering from cancer, no immediate action was required to treat the infection and he had been discharged from hospital.
The Court of Appeal concluded that the defendants had tried to deliberately mislead the court and to take advantage of Mr Salliss’s ill health. Also, the judge had rightly considered the fact that the oral evidence was mostly complete and that it was desirable for the trial to finish within its allotted time. Further, it was noted that Mr Salliss had appeared in court and was able to complete his evidence so no injustice had been caused by the judge’s decision.
As a result, the defendants’ appeal was dismissed.
What this means for you
In this case, the judge had failed to properly deal with the first application to adjourn the trial but it was held that the defendants had not suffered any injustice because the same decision would have been reached had the application been dealt with properly.
Also, in respect of the second application, it was concluded that the judge had properly exercised their discretion and was entitled to take into account the fact that Mr Salliss was no longer suffering from cancer and had been discharged from hospital.
Here, the Court of Appeal’s decision was heavily influenced by the fact that there was strong evidence to show that the defendants had deliberately tried to take advantage of a health scare in order to mislead the court. It was seen that there was no valid reason for the defendants to seek an adjournment of the trial and their conduct was questionable. The Court of Appeal specifically stated that the defendants likely wanted an adjournment because they did not think that their case was going very well, which was not a proper reason for seeking an adjournment.
The decision reinforces the general principle that appellate courts will not interfere with case management decisions made by lower courts unless satisfied that the decision of the judge was unjust, which will ultimately depend on all the circumstances of the case.
In cases where a party makes an application to adjourn a trial on grounds of ill-health, the court will require evidence identifying the treating medical consultant, details of their familiarity with the party’s medical condition, details of all recent consultations, details of the medical condition and why it prevented the party from attending trial. Also, the court will require a recent prognosis and confirmation that the prognosis is being provided as an independent medical opinion.
As a result, a party seeking to adjourn a trial on the grounds of ill-health will essentially need a medical report in support of their application. Following review of this evidence, consideration will be given to all the circumstances of the case and the overriding objective of dealing with cases justly and at proportionate cost.