Background

It is not uncommon for parties to litigation, especially litigants in person, to seek that a hearing be adjourned on the basis that they are unwell and cannot attend. The judgment in Mulalley & Company Ltd v Regent Building Services Ltd & Anor [2017] EWHC 2962 (Ch) explores some of the factors which can be relevant when a court is deciding whether or not to grant such a request.

 

Facts

Mulalley & Company Ltd (“Mulalley”) sought an injunction to restrain the respondents, Regent Building Services (“Regent”) and Mr White, a director of Regent, from presenting a winding up petition. Mulalley is a construction company. A former subcontractor of theirs, Crest Contracting Limited (“Crest”), had been wound up in December 2016. Mr White had been a director of Crest until that point.

Various debts, allegedly owed by Mulalley to Crest, had allegedly been assigned by them to Regent. On that basis, Regent served a statutory demand dated 9 March 2017 for £30,915.29. That demand was withdrawn by agreement after Mulalley made an application for an injunction to prevent a winding up petition being issued. The dispute, however, remained unresolved and on 10 June 2017 Regent served a further statutory demand on the same basis and for the same amount.

Mulalley made a further application to protect themselves against this new demand. They disputed the debt on three distinct grounds.

The application was first listed for a hearing on 29 June 2017 before Barling J. At that hearing, Regent and Mr White were represented by both solicitors and counsel (although Mr White later denied that they had been instructed for him and stated he had been acting in person). Counsel sought an adjournment of 14 days on the basis that Mr White had inoperable cancer and was undergoing chemotherapy at the time. Both Respondents gave undertakings not to take any steps to present a winding up petition until the application was disposed of. On that basis, the application was adjourned to a window in November 2017. It was eventually listed for 16 November 2017.

Late on 15 November 2017, the Court received by email a letter from Regent requesting that the hearing be adjourned and stating that:

• They had only been notified of the hearing “under email on th16th [sic] November 2017” and had no time to instruct representatives, their previous representatives having come off record on 1 September 2017;
• Mr White’s medical condition was such that he should not attend “any stressful or strenuous meetings”. His earlier evidence in relation to this was referred to, and some medical evidence included; and
• Mr White could not attend court in any event because of “my poor health, chemotherapy treatment and my general poor mobility”.

Some supporting medical evidence was attached.

 

Decision

David Stone, sitting as a Deputy High Court Judge, rejected the suggestion that the Respondents had insufficient notice of the adjourned hearing. At the absolute latest, they became aware when Mulalley’s solicitors had written to them by email on 2 November 2017, to which email they had responded. To the extent that this was advanced as a reason for adjourning the hearing, it was of no force.

The Judge reviewed the principles applicable to adjournments on medical grounds. There is a presumption that “A court faced with an application to adjourn on medical grounds made for the first time by a litigant in person should be hesitant to refuse the application” (Fox v Graham Group Ltd, The Times, 3 August 2001, per Neuberger J as he then was). However, there are a number of qualifications to this.

1. First, the decision is always one for the court, and a litigant cannot force the outcome. Parties who think that by requesting an adjournment in advance and then not attending a hearing can somehow force the court to accede to their request are mistaken (Levy v Ellis-Carr [2012] EWHC 63 (Ch) at [32]);
2. Medical evidence being relied on in such circumstances is expert evidence and should be analysed in the normal way. It should give details of the writer’s familiarity with the party in question, should identify what the medical condition is, what features of the condition prevent participation in a trial, give a reasoned prognosis, and give the court some confidence that it is independent and based on a proper examination. The court can then decide what weight to give to the opinion (Levy v Ellis-Carr at [36]; approved in Forrester Ketley v Brent [2012] EWCA Civ 324);
3. Courts have an array of possible accommodations they can make to assist a litigant in poor health to participate in a trial. It should not be taken for granted that the only course is to adjourn (Decker v Hopcraft [2015] EWHC 1170 (QB) at [27]);
4. Whether effective participation is possible can depend on the nature of the hearing. If, for example, the issues are straightforward and have already been debated in correspondence which is before the court, there may be little a party can usefully add at the hearing. If the issues are more complex but a party appears capable of instructing representatives, their own ill-health may be of little or no consequence (Decker v Hopcraft at [28]) and
5. The merits of the case are relevant. The more it appears to the court that one party or other is bound to succeed, the more likely they may be to proceed regardless. It may be appropriate to be more cautious in this approach if the hearing is, for example, a final determination rather than a case management hearing. (Decker v Hopcraft at [29-30], referring to Fox v Graham and to Boyd & Hutchinson (A Firm) v Foenander [2203] EWCA Civ 1516).

 

The Judge accepted that Mr White was indeed undergoing chemotherapy for inoperable cancer. However, the medical evidence relied on was some 8 months out of date, contained no prognosis, and did not suggest alternative arrangements. The Judge also noted Mr White had plainly been active and engaged in the process, issuing the relevant statutory demands, becoming the sole director of Regent and conducting extensive correspondence with Mulalley’s solicitors. The Judge was of the view that Mr White was entirely able to conduct his and Regent’s affairs.

Further, although Mulalley was formally the Applicant, it was responding to the statutory demands issued by Regent and Mr White, so there was a meaningful sense in which they were respondents. It was prejudicial to them to delay the proceedings further, even if Regent offered undertakings.

Finally, the Judge took the view that having read the papers and heard Counsel for Mulalley, “an adjournment would merely be delaying the inevitable.”

It was therefore appropriate to refuse the application for an adjournment and proceed in the absence of the Respondents.

On the substantive application, the Judge upheld all three grounds of Mulalley’s challenges to the statutory demand, finding they were substantial disputes put forward in good faith. Mulalley was entitled to the injunctions sought.

 

Comment

In this instance, the facts did seem to align against Regent as far as an adjournment was concerned, in that there had already been one adjournment, Mulalley had a substantive case which was described as “compelling” and Regent would still be left free to pursue the debt by Part 7 proceedings if they saw fit.

This judgment nevertheless serves as reminder that one is never entitled to an adjournment of a hearing. An adjournment, especially one very close to the date of the hearing, is an imposition to the other parties and to the court itself. It is always at the discretion of the court whether to grant or refuse this.

Even adverse medical conditions do not automatically mean an adjournment is appropriate. There are a number of factors which can override this: the strength of one side’s or the other’s case, general proportionality, or the fact that the evidence does not show a person truly needs an adjournment.

Although decisions like these are invariably fact-specific, this is a helpful guide to how they should be approached.