Goss J has refused to adjourn a defendant’s (D) relief from sanctions application following his failure to make a payment into court and to pay costs.
This decision helpfully summarises the principles applying to applications to adjourn hearings on medical grounds, illustrating that the medical evidence must properly substantiate the basis on which the adjournment is sought.
The judge distilled the following principles from the authorities:
- Granting or refusing an adjournment is a matter of discretion in the particular circumstances. An adjournment must be granted if refusing it would be a denial of justice. The applicant bears the burden of proof.
- Medical evidence should be scrutinised carefully. It is tendered as expert evidence and its weight must be determined according to general principles regarding such evidence. They include the doctor’s expertise and familiarity with the condition said to preclude the party’s participation in the relevant legal process; the detail of the material on which the doctor reaches their opinion, including their knowledge of the party’s medical history; the nature, length and number of examinations or consultations the party has had with the doctor or others regarding the condition; and details of any other material on which the doctor has reached their opinion.
- The court must consider fairness to both parties. If the medical evidence is deficient, it may be appropriate to consider a short adjournment to enable this to be addressed.
D’s solicitors had asked his doctor whether it was credible that D could not instruct lawyers due to “emotional vulnerability”. The doctor stated that D had acute stress and depression, which would be exacerbated by giving evidence. The judge considered the medical evidence against the history of the litigation, including D’s previous late applications and non-compliance with court orders. D had been in court when the hearing was listed, and saw the doctor shortly before the hearing. There was no evidence of what (if any) steps D’s solicitors had previously taken to consider his condition, or of any concerns regarding capacity or the need to appoint a litigation friend, and no application to come off the record. Refusing the adjournment would not deny D justice, as there was no evidence that he lacked capacity and he did not need to give evidence.
Case: Loanline UK Ltd v McIntosh and another [2018] EWHC 3378 (QB) (8 November 2018) (Goss J). Credits: Practical Law
