Late applications to adjourn trial dates

Introduction

In personal injury litigation, late applications seeking adjournments and vacation of long-listed trials are not commonly made by the parties and are even less commonly granted by the Court. The granting of such an application inevitably results in a waste of Court resources, an increase in costs, and delays.

Such applications seem to inevitably breed conflict and opposition between not only the parties but the core principles of the overriding objective.

That said, sometimes the vacation and loss of a trial date can be justified when the application may well lead to the production of important new evidence. It’s helpful for practitioners to have a recent example of just such a case and you can find that in Oakes v British Engineering Services Ltd [2022] 12 WLUK 360. Whilst there is no formal judgment available yet, the following can be gleaned from the law report.

Facts

In this matter, the Claimant (herein referred to as C), who was an engineering surveyor had been employed by the first Defendant (herein referred to as D1). An accident occurred while he was working at the Second Defendant's premises (herein referred to as D2) when equipment collapsed due to the failure of a torque limiter, injuring C. The cause of the failure leading to injury was unknown. It appears that at some point, unbeknownst to D1 and D2 the relevant regulator seized some of the equipment that had caused C to be injured.

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C brought proceedings for personal injury against D1 and D2 which was listed for a split trial starting on the 25th February 2023. To put this all into context, the hearing of the application that this note covers was on the 20th December 2022, so just over 2 months before the start of the fixed trial.

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As indicated above, as some of the relevant equipment was in the hands of the regulator (who was in charge of a criminal investigation into the accident) it was not possible for the cause of the injury to be thoroughly investigated.

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On learning of the existence of the equipment, D1 in March 2022 and on one occasion after wrote to the regulator, asking for access to the equipment for inspection and testing, which the regulator refused. D1 issued the application that this note is concerned with application in September 2022, but it was only served on the regulator in October 2022.

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The issue to consider

The point of interest in this matter is not how, or why the application was needed, but that Deputy High Court Judge Diaz KC accepted that if it was granted, a long-time tabled and expensive trial would need to be vacated. As a general principle, the Court would always be opposed to the granting of such an application (see for example, Mohamed v Enright [2018] EWHC 764 (QB))

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This set up the inevitable clear clash between the principles of proportionality, efficiency, promptness, and fairness.

There had been in the Court's mind a clear and unnecessary delay in the making of the application, for which there was no adequate explanation. Compounding this issue, it was identified that the earliest the trial could be heard was November 2023. If C succeeded on liability, there would then be a further delay in resolving causation and quantum. ?Whilst both C and the regulator maintained that testing would have negative utility as it would damage the equipment (which then could not be used in criminal proceedings) it was necessary, as inspection and testing may well provide evidence relevant to central issues at trial and not available by other routes.

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The Court identified that in favor of granting the application was the fact that all the experts agreed that inspection was useful and probative, as the evidence that was sought could potentially be determinative as to the question of liability.

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The Judgement

The Court had to wrestle with the individual interests and wishes of the parties along with the need to ensure it applied the overriding objective fairly to the case as a whole. DHCJ Diaz KC concluded that the prejudice to D1 outweighed the prejudice to the regulator and C if the application was not granted.

The Court acknowledged that there was a heavy burden on D1 to justify losing the trial date, but that burden had been met by the significant contribution that the evidence could provide to the trial of the claim. It went to the very heart of the case.

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DHCJ Diaz KC also pointed out that an important aspect of conduct in this matter was that whilst the application had been issued late, D1 had initially asked the regulator for access to inspect the equipment and could not be said to have been, “sitting on its hands”. DHCJ Diaz KC concluded that it would be unfair for D1 in the circumstances to be required to take part in a trial that might be unjust and that it would be draconian to shut it out from important evidence. Accordingly, the Court granted permission for inspection and non-destructive testing of equipment and vacated the trial date.

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A point that may escape a reader of Oakes at first blush is that the Court expressed that there was a strong public interest in allowing the application. This can’t have related to the case individually, but the principle of ensuring that the best evidence is before a Court when arriving at the Judgment of a claim.

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Conclusion

Oakes is an example that late adjournments of trial dates, where there is no real good reason (when the delay is considered) can be permitted by the Court, in the case where it would be manifestly unfair to not only a party, but the public at large that such an adjournment is not allowed. It will be interesting to see how the Courts in similar matters consider and resolve this public interest argument.