Trial Adjournments: Court of Appeal Guidance

23 February, 2021

The Court of Appeal handed down judgment on 22 February 2021 in Bilta (UK) Ltd (In Liquidation) & others v. Traditional Financial Services Ltd [2021] EWCA Civ 221, following its decision at a hearing on 19 January 2021 to allow an appeal from the refusal of Marcus Smith J to adjourn a five week trial due to commence on 25 January 2021.  The appeal was heard on an expedited basis just eight days after the first instance decision, given the proximity of the commencement of a substantial trial in the Chancery Division.

Nugee LJ, with whom Peter Jackson LJ and David Richards LJ agreed, gave the leading judgment in which practical guidance is contained concerning adjournment of trials on the basis of the physical incapacity of litigants or key witnesses.  The touchstone is whether a fair trial can take place in the relevant circumstances. This involves a two-stage assessment: first, ascertaining the factual position; and, secondly, exercising discretion in accordance with the overriding objectives of the Civil Procedure Rules.  The Court of Appeal allowed the appeal, concluding that an adjournment was justified by reason of the inability of the Defendant’s principal witness to attend trial on medical grounds.

A link to the judgment can be found here.

The first instance decision of Marcus Smith J ([2021] EWHC 36 (Ch), which can be found here is interesting as it provides a blueprint for what he considered to be a ‘CoViD secure’ trial. That aspect was not appealed.

David Scorey QC, leading Laurence Emmett (One Essex Court), was instructed by Masoud Zabeti at Greenberg Taurig LLP on behalf of the Appellant/Defendant.