I had to research this issue for a real case last week, and because it was quirky and hard to winkle out, I thought I’d share it.
It does happen from time to time that a party to Court proceedings is too ill to participate in a key hearing, perhaps even the final hearing, and seeks an adjournment. Sometimes they really are ill, sometimes they are pulling a Ferris Bueller.
“You fake a stomach cramp, and when you’re bent over moaning and wailing, you lick your palms. It’s a little childish and stupid, but so is the Family Court….”
What is needed is a doctor’s note. No doctor’s note, no adjournment. But what if there is a doctor’s note? How is the Court supposed to decide whether to grant the adjournment or not.
Oddly, I couldn’t find any reported family law cases saying how bad the illness has to be, or what test the Court has to apply. It turned out the relevant case law was a Probate case, and not a very old one either. Levy v Ellis-Carr and others 2012
We’ll come back to it. I’d like to share with you my story of the worst ever application for an adjournment I had to make. It was a private law case, my client was going down like the Hindenberg, and it was the final hearing. Two days before, my client rings me and says that he can’t come to the final hearing, it needs to be put off. For a few months. I explain that I’ll need a doctor’s note, and he gives me a sigh which is intended to convey to me how utterly unreasonable I am being.
I receive the doctor’s letter minutes before I need to set off to Court, so I slap it on the photocopier, do 3 copies and start walking down to Court with my bundle.
The first paragraph of the letter reads like this, in type
“I saw Mr J on 12th March 2009. He had a headache.”
[I’m thinking that this probably doesn’t cut it, but wait. In handwriting, familiar handwriting, the same handwriting as I’ve got in my bundle on the various threatening letters sent by my client to the children’s mother, there’s an annotation”]
“and a broken leg”
Next paragraph, in type :- I recommended aspirin for his headache.
Handwriting floating above the sentence, as though the doctor had forgotten this and added it afterwards, silly doctor.
Handwriting “And I put his leg in plaster”
Type :- As the headache was very minor, he would be perfectly able to attend Court.
Handwriting “But not with his broken leg, which means that he can’t come”
I had to hand this in to the other side, who had the decency to do all of their laughter in another room, and then later to the Judge.
I was not successful in my application. My client rang later that day to ask if his contact for the weekend was still on. He lived a four hour drive from the children.
“But Mr J, ” I said, “How will you drive all that way with your broken leg?”
“Oh that,” he said, “It’s got better.”
Anyway, here’s the authority.
Levy v Ellis-Carr and Others 2012
In this case, the appellant wanted an adjournment of a hearing, and produced a doctor’s letter
- First, there is a letter from a Doctor dated 24 May 2011 (the date of the hearing before Registrar Derrett) which says :
“The above named saw me today very distressed and upset with multiple problems. My diagnosis is that he is suffering from anxiety depression. And he is prescribed medication for it. If his problem persist or get worse I will refer him to a Consultant Psychiatrist.”
The Court refused the adjournment, and he appealed it.
The High Court, in the form of Norris J, dealt with this aspect of the appeal like this.
- 32. I will deal first with the ground of appeal which asserts that the Registrar erred in law in failing to grant an adjournment. This ground is directly related to the Appellant’s failure to attend the trial. The decision whether to grant or to refuse an adjournment is a case management decision. It is to be exercised having regard to the “overriding objective” in CPR 1. Showing that the exercise of discretion was outside the generous ambit within which there is reasonable room for disagreement is not an easy task: see Khudados v Hayden  EWCA Civ 1316. In Fitzroy Robinson v Mentmore Towers  EWHC 3870 (TCC) Coulson J at paragraph  set out some of the factors that might be relevant to an 11th hour application to adjourn a trial. But each case must turn on its own facts (and in particular upon how late the application is made).
- 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. The decision must of course be a principled one. The judge will want to have in mind CPR1 and (to the degree appropriate) any relevant judicial guidance (such as that of Coulson J Fitzroy or Neuberger J in Fox v Graham (“Times” 3 Aug 2001 and Lexis). But the party who fails to attend either in person or through a representative to assist the judge in making that principled decision cannot complain too loudly if, in the exercise of the discretion, some factor might have been given greater weight. For my own part, bearing in mind the material upon which and the circumstances in which decisions about adjournments fall to be made (and in particular because the decision must be reached quickly lest it occupy the time listed for the hearing of the substantive matter and thereby in practice give a party relief to which he is not justly entitled) I do not think an appeal court should be overcritical of the language in which the decision about an adjournment has been expressed by a conscientious judge. An experienced judge may not always articulate all of the factors which have borne upon the decision. That is not an encouragement to laxity: it is intended as a recognition of the realities of busy lists.
- In the instant case the Appellant has to demonstrate that on the material then before her the Registrar exercised her discretion wrongly as a matter of law, and he has also to demonstrate that in fact he had a good reason not to attend the trial.
- In my judgment there were ample grounds upon which the Registrar could properly refuse the adjournment (whether she expressly referred to them or not). There was a history of making applications for adjournments at each stage. The hearing before her was itself a re-listed hearing. There was evident non-cooperation in preparing for the trial. Even on the Appellant’s own case he had made his application for an adjournment at the last possible moment. He adduced no medical evidence. His solicitor deliberately withdrew instructions from Counsel and told Counsel not to attend the hearing. The solicitor on the record made a conscious decision not to attend the hearing. The application was already a year old (partly because the Appellant had sought adjournments to put in evidence and had then not done so) and related to a bankruptcy that had commenced in 1994. The Court could if the hearing proceeded take into account such evidence as he had adduced (even if it did not have the benefit of the criticisms he wanted to make of the trustee’s case all the benefit of any argument he wanted to advance in support of his own). The Appellant would always have available the opportunity afforded by CPR 39.3.
- Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.
- The Appellant complains that the failure to grant the adjournment is a breach of his human rights. The complaint is misconceived. The Appellant’s right to a fair trial means that he must have a reasonable opportunity to put his case. He had that right on 9 February 2011 (but asked the Court to postpone it). He was urged to exercise that right by the trustee’s solicitors on 23rd May 2011: but he and his legal representatives chose not to avail themselves of it.
- This ground of appeal fails.
The medical evidence which the person seeking an adjournment relies upon is to be treated as a piece of expert evidence. The Court does not HAVE to accept its conclusions. It has to contain with particularity (details) what the medical condition is, why that prevents participation in the court process, provide a future prognosis, and set out that the author of the report (a) has examined the person (b) has made the diagnosis of the medical condition and on what basis and (c) is qualified to do so.
If the medical evidence comes up to those standards, the Court will then consider the adjournment based on the over-riding objectives set out in the Family Procedure Rules
1.1.—(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable—
(a)ensuring that it is dealt with expeditiously and fairly;
(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c)ensuring that the parties are on an equal footing;
(d)saving expense; and
(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Obviously with a genuine medical complaint, there’s a tension between resolving the case ‘expeditiously’ and resolving it ‘fairly’ and it will be for the Judge to decide on which side of the scales the particular application for an adjournment falls.
In Care proceedings, an application for adjournment that would take the case beyond 26 weeks has the additional hurdle of the revised section 31 following the Children and Families Act 2014 which set the duration of care proceedings as 26 weeks, and that a party seeking to extend the proceedings beyond that has to show that it is NECESSARY
5)A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.
(6)When deciding whether to grant an extension under subsection (5), a court must in particular have regard to—
(a)the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and
(b)the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;