Tom is a specialise financial remedy practitioner. He is available to advise in conference and represent parties both via solicitors and in appropriate cases direct access.

In this article he considers the approach to be taken in applications to adjourn due to claims of ill health.

For specialist advice and representation contact clerks@orielchambers.co.uk.

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INTRODUCTION

It is not uncommon to prepare for a hearing; for a client to incur the cost of representation and the stress of an imminent court date; only for another party to seek an adjournment on medical grounds. Without looking in any detail at the legal position, one’s instinct might be to accede to such a request. How can a hearing be fair if the other side is medically incapable of attending? However, it is an area which bears greater scrutiny.

Adjournments on medical grounds, as with any other adjournment, can have a series of negative consequences for the client, inter alia:

1. Delayed justice;
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2. Increased legal costs;
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3. A loss of faith in the legal system;
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4. A sense that the adjourning applicant has gained some advantage (as well they might);
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5. A sense of frustration that matters are being kicked into the long grass;
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6. Increased stress – if this application is successful, will they try to adjourn the next hearing too?
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It is important therefore to oppose every application for an adjournment on medical grounds where it can be sensibly opposed.

In this article, we look at the case law which has emerged surrounding such adjournments and offer some practical tips for those making and opposing those applications.

This article is directed primarily to those making applications in private law and financial remedy proceedings – FPR 12 provides a self-contained code for those dealing with public law proceedings.
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‍SUMMARY OF PRINCIPLES

In Decker v Hopcraft [2015] EWHC 1170 (QB), Warby J offered a helpful summary of the principles governing applications to adjourn on medical grounds (paragraphs 22 – 30):

1. Subject to the following qualifications, a court should be slow to refuse a first application to adjourn by a litigant in person;
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2. The decision to adjourn is for the court to make – it cannot be forced upon it;
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3. The court must carefully scrutinise the evidence proffered in support;
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4. The fact that a party cannot work as evidenced by a sick note does not necessarily lead to the conclusion that they cannot participate in proceedings – such a determination will be fact specific;
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5. Reasonable accommodations to enable participation should be considered;
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6. The question of effective participation depends also upon the nature of the hearing (ELH, type of hearing, necessity for evidence / submissions etc);
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7. The more polarised a case as to prospects of success on the primary case, the less likely there is to be an injustice in the event of refusing an application.
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PROCEDURE

Family Procedure Rule 4.1(3)(c) provides that the Court may adjourn or bring forward a hearing in the exercise of its case management powers:

4.1

…

(3)     Except where these rules provide otherwise, the court may –

…

(c)     adjourn or bring forward a hearing…”

Adjournments therefore are a matter of judicial discretion, to be exercised in accordance with the overriding objective. Whether the exercise of that discretion does fairness between the parties will be central.

LAW

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). This, however, is subject to a number of qualifications.

In Levy v Ellis-Carr [2012] EWHC 63 (Ch), Norris J made clear that the decision as to whether to grant an adjournment is always that of the Court. It is not a decision which can be forced upon the Court by, for example, a party’s non-attendance:

“Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently 'medical' grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge.”

In Levy v Ellis-Carr, Norris J set out guidance as to the features medical evidence should provide. Medical evidence relied upon in support of an application to adjourn should:

• Identify the medical attendant providing that evidence;
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• Give details of their familiarity with the party’s medical condition (detailing all recent consultations);
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• Identify with particularity what the patient’s medical condition is;
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• Identify with particularity what features of that condition, in the attendant’s medical opinion, prevent participation in the trial process;
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• Provide a reasoned prognosis; and
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• Give the Court some confidence that what is being expressed is an independent opinion following a proper examination.
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Norris J further reminds us that such letters are being tendered as expert evidence; that it is for the court to determine what weight to attach to that evidence; and that the court might consider what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. He further makes the important point that even a proper medical report falls to be considered as part of the material as a whole (including conduct prior to the application to adjourn). Practitioners would therefore do well to point out to the judge those cases in which a series of application to adjourn and / or attempt to delay or frustrate the court process have preceded even a properly made application.

Norris J’s dicta were expressly approved by the Court of Appeal in Forrester Ketley v Brent & Another [2012] EWCA Civ 324 at [26]. In the same judgment, Lewison LJ dealt with the width of the judge's discretion when considering the grant of an adjournment:

“25. His second objection is that Morgan J should have adjourned the hearing on 10 March because Mr Brent was unwell and unable to attend. Whether to adjourn a hearing is a matter of discretion for the first-instance judge. This court will only interfere with a judge's exercise of discretion if the judge has taken into account irrelevant matters, ignored relevant matters or made a mistake of principle. Judges are often faced with late applications for adjournment by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.”

Litigants often place heavy (if not sole) reliance upon pro forma sick notes in such applications. In Andreou v The Lord Chancellor's Department (22 July 2002), Peter Gibson LJ at [41] said:

“The fact that a person is certified on medical grounds is not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner.”

King LJ addressed the reliance upon such documents at paragraph [31] of her judgment in Emojevbe v Secretary of State for Transport [2017] EWCA Civ 934:

“iii) A pro-forma fit [sick] note, without more, may well be insufficient to found either a successful application for an adjournment at first instance or even an application under CPR 39.3(3). In considering whether that is the case, the court would undoubtedly have in mind the pressure under which GPs are working and the difficulties which may be faced by a litigant in person who, without the authority of a solicitor's letter may face considerable difficulties in obtaining a report containing more detailed information that the bald details found on a fit [sick] note. Equally on the other side of the coin, the court will have in mind the frequency with which late, unmeritorious applications for an adjournment are made.”

Often, litigants presenting inadequate medical information will invite the Court to grant an adjournment to permit them to obtain further or better medical evidence. A Court who is mulling such a course of action should be reminded of GMC v Hayat [2018] EWCA Civ 2796 at paragraph [42], wherein the Coulson LJ, delivering the leading judgment, noted:

“The Tribunal has a discretion to conduct further enquiries if the medical evidence does not meet the requirements noted above. Teinaz v Wandsworth London Borough Council [2012] EWCA Civ 1040 makes plain that this is a discretion, not a duty. The courts have generally supported tribunals who have refused to adjourn hearings when presented with medical evidence that was inadequate or insufficient: see Forrester Ketley, by way of example. The onus remains on the individual to engage with the Tribunal and the process, and “a culture of adjournment is to be deprecated”: see Adeogba at [61] where, in addition, at [59], Sir Brian Leveson expressly rejected the suggestion that the Tribunal should have made its own further enquiries...”

CONCLUSION

When making an application to adjourn on medical grounds, one must do more than simply handing up a sick note. The court is required to scrutinise the evidence relied upon; and will expect to see a reasonable amount of detail to bear out the submissions being made. Conversely, a respondent to such an application seeking to take a firm oppositional stance should review such evidence against the principles set out in the case law.

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