In the Governor and Company of the Bank of Ireland and another v Syed Asalat Shabbir Jaffery and another [2012] EWHC 734 (Ch) Vos J helpfully summarises the three key issues which the court should consider when approaching late applications to adjourn a trial for medical reasons. These include, whether the claimant/defendant is really ill, whether there is an arguable defence and where does the balance lie taking into account the overriding objective.

One of the defendants, Mr Jaffery, a litigant in person, applied for an adjournment five days before the trial was due to begin. Mr Jaffery had been taken ill the previous week and was in hospital undergoing tests. At this point the Judge had already undertaken 2 days of pre-reading for a 12 day trial.

At a preliminary adjournment hearing, which Mr Jaffery did not attend, Vos J concluded that he did not have sufficient evidence of Mr Jaffery’s medical condition and ordered Mr Jaffery to submit to medical examination by expert doctors nominated by the claimants and give them access to medical records. In the event of non-compliance, the judge said that the adjournment application would be refused. 

Mr Jaffery did not comply with the order instead serving a medical report from his own, not the claimant’s doctor, only an hour before the subsequent hearing of the application.  Of the medical evidence Vos J said “… suffice it to say that it does not appear at first sight to indicate a very sick patient or one that has any serious discernible disease.”

Vos J refused to adjourn the trial even though Mr Jaffery was still in hospital. In reaching his decision, Vos J considered three issues:

  1. Was Mr Jaffery truly ill or unable to attend trial and, if so, when would he be able to attend trial?
  2. Did Mr Jaffery have an arguable defence to the case?
  3. Where did the balance lie, taking into account the overriding objective and the history of the litigation?  

Crucially, although Vos J recognised that Mr Jaffery may not attend trial he did consider that it was possible to devise a regime for the conduct of the trial which would enable Mr Jaffery to attend.

The decision will be welcomed by institutions faced by unmeritorious applications of this type although it is perhaps optimistic to expect that in cases at the lower end of the Court system Judges would feel able to follow Vos J’s very hands on approach to case management.