The Commercial Court in Manchester Property Development Holdings and Stephen Beech v Kuit Steinart Levy [2025] EWHC 35 (Comm) considered the factors the Court should apply when adjournment is sought due to Counsel falling ill.

The claim was a £32m professional negligence claim brought by a property developer and its owner against the Defendant firm, alleging that proper legal advice could have prevented the financial loss they suffered. The matter was listed for three days pre-reading plus a trial commencing on the 20^th of January 2025. The parties had three experts each, and eight lay witnesses were to give evidence on the day.

The Defendant was informed a week prior to the hearing that lead counsel had unexpectedly fallen ill and applied for an adjournment on the 9^th of January 2025. The Defendant considered instructing alternative counsel before determining it was not realistic to do so, given the complexity of the case. The Defendant argued that Junior counsel would not have sufficient time to prepare to act as lead, and it was not a case that he could "learn the lines" as if in a play.

The Claimant argued that a week was sufficient time to find alternative counsel, that junior counsel attending alongside lead counsel could take over and act as lead and that an adjournment would be prejudicial as their funders may not fund the costs associated with said adjournment.

The court’s discretion to adjourn a trial is contained under CPR 3.1 (2) (b). When exercising this discretion, the Court must have regard to the overriding objective (CPR 1) of dealing with cases justly and at proportionate cost.

The Court considered the case of Bilta (UK) Ltd (in Liquidation) & Others v Tradition Financial Services Ltd [2021] EWCA Civ 221, the court held that ‘the guiding principle was whether if the trial goes ahead it will be fair in all the circumstances; that the assessment of what is fair is a fact-sensitive one, and not one to be judged by the mechanistic application of any particular checklist… And if the refusal of an adjournment would make the resulting trial unfair, an adjournment should ordinarily be granted, regardless of the inconvenience to the other party or other court users, unless this was outweighed by injustice to the other party that could not be compensated for’.

The Claimants also referred to the case of Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation [2023] EWHC 2394 where Constable J outlined the factors that the court should take into account in the context of a late application to adjourn: 

• The parties’ conduct and the reason for the delays;
• The extent to which the consequence of the delays can be overcome before the trial; 
• The extent to which the delays may have jeopardised a fair trial;
• Specific matters affecting the trial, such as the illness of a critical witness; and 
• The consequences of an adjournment for the claimant, the defendant and the court.

Dame Clare Moulder DBE, despite being ‘extremely reluctant’, adjourned the trial, finding that whilst the Claimant may suffer prejudice, weighing all the circumstances, the Defendant could not have a fair trial.  Dame Moulder DBE stated that: ‘[the] legal system is based on the oral presentation of evidence and submissions. Cross-examination plays a crucial role in our legal system, enabling the court to obtain the best evidence from witnesses. Cross-examination of witnesses requires skill and extensive preparation. When the Court considered this, it favoured adjournment.