Home Information Cases Terry Simou v Michael Salliss & ors (2017)

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Terry Simou v Michael Salliss & ors (2017)

Summary

A trial judge had not erred in refusing two applications to adjourn a trial on the ground of the ill-health of one of the defendants. Although the judge had failed properly to deal with the first application, the defendants had not suffered any injustice as a result, and they had deliberately tried to take advantage of a health scare to mislead the court and secure an adjournment by improper means.

Facts

A husband and wife (H and W) appealed against the refusal of two applications they had made for an adjournment of a trial on the ground of H's ill-health.

The trial concerned two neighbour boundary disputes. The appellants were litigants in person. The first application was made informally by W in the week before the start of the trial. She stated that H had been receiving treatment for bladder cancer and was not well enough to defend himself. Although a decision on the application was promised by the court office, it was unclear whether the application ever reached the judge, and on the first day of the trial the application was implicitly refused because the judge proceeded with the trial in H's absence. The second application was made during the second week of the trial and after H had had to go to hospital due to pain and blood in his urine. W had sought the assistance of counsel on a direct access basis for the purpose of the application. The application was refused.

The appellant argued that

(1) the first adjournment application was never properly considered or ruled upon by the judge;

(2) in refusing the second application, the judge had become fixated on a discharge letter from the hospital, which demonstrated that H was no longer suffering from cancer, and that vitiated his ability to assess the position in the round.

Held

(1) The court could reasonably have insisted that any application for an adjournment should be made by application notice supported by proper evidence, but it did not do so. W was given the clear impression that her application had been accepted and would be ruled upon by the judge. Furthermore, by the start of the trial, the judge should have appreciated that that was the position, and that the question needed to be addressed. At the very least, he should have enquired whether W still wished to pursue the application, and (if she did) invited further submissions from the parties before reaching a decision. As it was, the issue went by default and the trial proceeded without it being resolved. Accordingly, there was a procedural irregularity in the court's failure to address and deal with the adjournment application. However, that irregularity did not cause any injustice to the appellants. It had been agreed at the pre-trial hearing that H would miss the first day of the trial because of a hospital appointment, and everybody, including H, recognised that it was most desirable for the trial to go ahead. In those circumstances, 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 the trial. The most probable scenario was that the judge would have postponed making any decision on the application until day three (a site visit had been scheduled for day two), directing W in the meantime to obtain proper medical evidence which complied with the requirements laid down in Levy v Ellis-Carr [2012] EWHC 63 (Ch), Levi considered. Had the judge given directions to that effect, it would have been apparent by day three that H had recovered sufficiently well to play a full part in the trial, as he had proceeded to do for the rest of that week. The application for an adjournment, if still pursued, would therefore have been refused (see paras 65-69 of judgment).

(2) When the second application was made, the judge had before him the discharge letter from the hospital, which demonstrated that H was not currently suffering from cancer, and that no immediate action was required to treat an infection which had been the cause of his pain and bleeding. He had been able to leave the hospital the previous evening, and any secondary care follow up was to be as an outpatient. Furthermore, there was strong evidence to suggest that the appellants had deliberately tried to engineer an adjournment of the trial by delaying their journey to the hospital, by pretending that their papers had either been stolen or mislaid, and, in W's case, by enlisting the services of counsel to apply to the judge for an adjournment on the basis of information supplied to him which was demonstrably untrue. The judge had every reason to conclude that the court was being messed around by the appellants, probably because they perceived that the case was going badly for them. The judge had a balancing exercise to perform. There were factors which told in favour of an adjournment, including the distressing symptoms which H had experienced, but there were also powerful factors which pointed the other way, including the fact that the oral evidence at the trial was mostly complete, the general desirability of finishing the trial within its allotted schedule, and the evidence suggesting that the appellants had deliberately tried to take advantage of H's latest ill health to mislead the court and secure an adjournment by improper means. The judge took all those matters into consideration and could not be criticised for deciding that the adjournment should be refused. That conclusion gained support from the fact that H later appeared in court and was able to complete his evidence and conduct the remaining stages of the trial (paras 70-73).

Appeal dismissed

Court of Appeal (Civil Division)
Sir Terence Etherton MR, Beatson LJ, Henderson LJ
Judgment date
28 April 2017
References