Postponement and adjournmentTimes 12 OctoberTimes 19 OctoberRe [1995] 2 FLR 801Re [1954] 1 WLR 564Re [1954] 1 WLR 564
Terminology
8.80A hearing may be aborted before it has begun or it may be abandoned before it is complete. Aborting a hearing is called a postponement and abandoning a hearing is called an adjournment.
8.81The failure to define or otherwise distinguish between adjournment and postponement does not matter, as the difference is largely irrelevant to the principles that govern the exercise of the power. For convenience, therefore, this section refers only to adjournments, unless it is necessary to make the distinction.
The power
8.82Courts have inherent power to adjourn.
1Farwell J in Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 at 39. It is probable that tribunals have an inherent or implied power, as part of the power to regulate their own procedure. Under TCEA, the rules of procedure confer an express power to adjourn. It is a case management power. UTR r5(3)(h) is illustrative:
2See also: GRC Rules r5(3)(h); HESC Rules r5(3)(h); IAC Rules r4(3)(h) and Sch para 12; Lands Rules r5(3)(h); PC Rules r6(3)(j); SEC Rules r5(3)(h); Tax Rules r5(3)(h); WPAFC Rules r5(3)(h).(3)In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may–
…
(h)adjourn or postpone a hearing; …
8.83The principles discussed in this section apply when a case is removed from one session to be included in a later session of the tribunal. They do not apply before a case is listed. Nor do they apply to short adjournments within a session; re-organising the list or taking a break in the proceedings are governed by the tribunal’s power to regulate its own procedure.
3See chapter 7.8.84A proper understanding of the power to adjourn is relevant to:
•the parties and their representatives so that they may present their applications to the best advantage;
•the tribunal so that it may apply the principles appropriately;
•those who have to evaluate the efficiency of a tribunal system so that they can properly assess the significance of the decision and distinguish when the power has been exercised appropriately and necessarily and when it has not.
8.85The power is conferred on the tribunal. It is not delegated: see chapter 7.
The exercise of the discretion
8.86The power is always discretionary and is governed broadly by the same principles that govern all discretions.
8.87It must be exercised judicially. But that says no more than that it must be exercised in accordance with the following principles.
8.88A power must always be exercised for the purpose for which it was conferred. The purpose of an adjournment is to ensure that the parties to the proceedings have a fair hearing in accordance with the principles of natural justice
4Lord Parker CJ in R v The Medical Appeal Tribunal (Midland Region) ex p Carrarini [1966] 1 WLR 883 at 887. and article 6. The discretion must be exercised to ensure that that purpose is attained. So, an adjournment of a property adjustment order for three years was not a proper exercise of the discretion.
5Rodewald v Rodewald [1977] Fam 192. Nor was an adjournment of a hearing before a mental health review tribunal in order to see if the patient would improve or could sustain an improvement.
6R v Nottingham Mental Health Review Tribunal ex p Secretary of State of the Home Department (1988) Times 12 October. Unreasonable delay attributable to the State may also violate article 6.
7Vernillo v France (1991) 13 EHRR 880 and Darnell v United Kingdom (1993) 18 EHRR 205.8.89The discretion must be exercised in relation to the facts of the individual case and not on the basis of authority or analogy with previous decisions.
8Lord Wright in Evans v Bartlam [1937] AC 473 at 488–489. Generally, authorities do not bind in exercises of discretion, because that would override the discretion. However, authorities are relevant for three reasons. First, they establish the principles on which a tribunal must exercise its discretion. Second, the exercise of this, like all, discretions will involve an error of law if there was a clear mistake. The authorities, therefore, show some of the limits within which the application must be decided. Third, they also contain some indications of the general approach that should be taken.
8.90Older authorities are now subject to reconsideration to take account of the overriding objective. As Lightman J explained in
Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5):
9[2008] 1 WLR 2380 at [18]. ‘no doubt considerations held critical in the authorities cited are relevant, but not decisive’.
8.91The tribunal dealing with the application must take account of all circumstances relevant to the application and must not take account of any circumstances that are irrelevant. It must be decided on the circumstances relevant to the time of the application, not those that pertained earlier.
10Scott LJ in Dick v Piller [1943] 1 All ER 627 at 629 (not in the report at [1943] KB 497). But earlier events may set the context in which the application has to be decided. For example: they may show a pattern of delay.
8.92As the power is discretionary, it is permissible to adjourn without condition or only on terms.
11Scott LJ in Dick v Piller [1943] KB 497 at 500. If the applicant will not accept the terms offered, it is permissible to refuse to adjourn.
12Hickson v Hickson [1953] 1 QB 420.Deciding whether to adjourn
8.93There must always be a good reason for adjourning a hearing.
13Unilever Computer Services Ltd v Tiger Leasing SA [1983] 1 WLR 856. That requirement breaks down into three stages of enquiry for a tribunal when deciding whether to adjourn. First, it must identify the purpose that an adjournment would serve. Second, it must investigate why this was not anticipated and catered for. Third, it must consider the effect an adjournment would have on the parties and on the operation of the tribunal system. In practice, these stages may not be so distinct. For example: the purpose that would be served by adjourning to await the outcome of related proceedings is determined by the impact it will have on the party concerned and vice versa.
The purpose of the adjournment
8.94The purpose of a delay will either be to allow a party to be ready to proceed or to allow the tribunal a chance to hear the case. A party may not be ready because: (i) the evidence is incomplete; (ii) the argument is not fully prepared; (iii) someone (such as a witness or a representative) is not available; or (iv) the decision in another case is awaited. The most likely reason why the tribunal may not have a chance to hear the case is that there was insufficient time, usually on account of time spent on other cases or of evidence and submissions provided at the last minute. It may also be waiting on the decision in another case.
Obtaining evidence
8.95This is a common reason for applying for an adjournment.
8.96There is no special approach for requests for an adjournment in order to obtain expert evidence.
14Winchester Cigarette Machinery Ltd v Payne (1993) Times 19 October.Preparing argument
8.97This is less common as a reason for applying for an adjournment than wanting time to obtain more evidence. It will usually arise from delays in obtaining representation. However, it would be appropriate to adjourn if a significant new issue arose at the last minute, perhaps at the hearing, which could not reasonably have been anticipated and for which one of the parties was not prepared.
Attendance by a party: understanding its importance
8.98In
Hanson v Church Commissioners for England,
15[1978] QB 823. it became clear in the final stages of proceedings before a rent assessment tribunal that the tenant, whose objection had led to the proceedings, had not understood the consequences of failing to attend the hearing. Roskill LJ said:
I am very conscious of the irritation as well as the extra expense which last minute adjournments can cause, particularly with tribunals of this nature, and I recognise the desire of any tribunal to avoid such adjournments whenever possible. But sometimes, if justice is to be done, adjournments are essential.
16[1978] QB 823 at 838.Attendance: representative unavailable
8.99In
Royal Bank of Scotland v Craig,17(1997) 94 (39) LS Gaz 39. the counsel who was due to represent the defendant was unavailable. The judge refused to allow time for new counsel to be instructed and to become familiar with the case. The Court of Appeal held that the judge had not asked the right question: would the defendant be prejudiced if the case proceeded? The Court decided that the claimant was entitled to an adjournment as he had been the innocent victim of mismanagement by his original counsel.
8.100In
Priddle v Fisher & Sons,
18[1968] 1 WLR 1478. it was held wrong in law for a tribunal to proceed when it received a message shortly after the start of the hearing to say that the representative of one of the parties was too ill to attend and the party was prevented from reaching the venue by snow. This was so despite the fact that the party did not ask for an adjournment.
Attendance: illness
8.101It may be wrong in law to refuse to adjourn to allow a party who is ill to attend to give evidence that is important.
19Dick v Piller [1943] KB 497 and Rose v Humbles [1970] 1 WLR 1061 and [1972] 1 WLR 33. The requirements were summarised by Lightman J in
Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5):
20[2008] 1 WLR 2380 at [14].These authorities established that an adjournment should be granted if four conditions were satisfied. The first was that the witness was unable to attend on grounds of ill-health. The second was that the witness’s evidence was reasonably necessary if the party’s case was to be properly presented. The third was that there was a reasonable prospect that the witness would be able to attend an adjourned hearing at a specific and reasonable future date. The fourth was that the other party would suffer no injustice which cannot be remedied by an award of costs or otherwise.
8.102In
Teinaz v Wandsworth London Borough Council21[2002] ICR 1471. the Court of Appeal considered how a court should deal with an application for an adjournment based on medical advice not to attend. Peter Gibson LJ gave this advice:
22[2002] ICR 1471 at [20]–[22].Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment …
A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant’s right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.
If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case.
Other proceedings
8.103An adjournment may be sought to await the outcome of civil or criminal proceedings before another tribunal or a court. These may be proceedings that involve one of the parties or will give an authoritative ruling on a legal issue. If one of the cases involves the care of a child, the child’s welfare is paramount.
23Re TB (Care Proceedings: Criminal Trial) [1995] 2 FLR 801 at 805.Other civil proceedings
8.104An adjournment is appropriate if the outcome of one proceeding is dependent on the outcome of the other. Whether this is so requires an analysis of the issues in each proceedings and the relevance of the findings in each case to the other. For example: in
BUPA Care Homes (CFC Homes) Ltd v Muscolino,
24[2006] ICR 1329. an employment tribunal refused to adjourn to await the outcome of related proceedings before the Care Standards Tribunal. The Employment Appeal Tribunal dismissed the appeal against the refusal, deciding that each case raised different issues and that the findings in each would not be binding in the other. Elias J was sanguine about the possibility of inconsistent findings in the two proceedings:
25[2006] ICR 1329 at [19].If she wishes to pursue both her independent claims, then in so far as there is any conflict in the decisions, that is a matter which, if it causes her to feel aggrieved, is a consequence of her having determined to pursue proceedings down both channels.
Criminal proceedings
8.105If one of the cases is criminal, the issue arises whether there will be any prejudice to the party’s defence in the criminal case in disclosing evidence before the trial or any impediment to the civil case in this evidence not being available. Given the limitations on the right to silence, this consideration may have less relevance than it once did. Richards LJ explained how the issue should be considered in
Mote v Secretary of State for Work and Pensions:
26Reported as R(IS) 4/08 at [31].I do not accept that the Human Rights Act 1998 requires any material change of approach in this area. In my judgment the court still enjoys a real discretion whether or not to adjourn. The authorities make clear that a relevant consideration is whether the continuation of the civil proceedings will give rise to a real risk of prejudice to the defendant in the criminal proceedings. If there is a risk of prejudice, then I would expect it to weigh heavily in favour of an adjournment pending the conclusion of the criminal proceedings, but it will not necessarily be decisive. I accept, of course, that the court must not act in breach of the defendant’s Convention rights; but it is difficult to see how the continuation of the civil proceedings could give rise in itself to a breach of those rights. As the tribunal chairman held in the present case, the civil proceedings can be conducted in such a way as to respect them. An additional and important safeguard lies in the powers of the judge in the criminal proceedings to stay those proceedings for abuse of process or to limit the evidence admitted at the trial if, in the circumstances then prevailing, it is necessary to do so in order to prevent a breach of Convention rights or to ensure a fair trial. The civil court or tribunal can take into account the existence of those powers when considering the exercise of its own discretion whether to adjourn.
8.106In
R v Levey,
27[2007] 1 FLR 462. the Court of Appeal emphasised the importance of co-ordinated listing of criminal and civil proceedings. This will not be so easily achieved if the civil case is before a tribunal.
Authoritative decisions
8.107Tribunals will usually adjourn or stay cases to await authoritative decisions in cases that are currently being considered by the Upper Tribunal or the courts. Ultimately, though, everything depends on the circumstances of the individual case. In
Re Yates’ Settlement Trusts,28[1954] 1 WLR 564. the hearing of an application to approve a settlement had been adjourned to await the outcome of an appeal pending before the House of Lords, the principle in which would affect the outcome of the case. Sir Raymond Evershed MR said that in principle it was permissible to adjourn in order to await the outcome of a case before a higher court.
29[1954] 1 WLR 564 at 567. However, the Court of Appeal decided that the adjournment had been wrong in the circumstances of the case, because the settlor was old and ill. It was, no doubt, also relevant that the settlement was a compromise and that the adjournment had been of the judge’s own motion. In other words, there were no opposing interests that might be prejudiced by the adjournment.
The need for an adjournment
8.108The parties and their advisers should prepare their cases in advance. Preparation involves anticipating problems that may arise and taking appropriate steps to avoid them so far as possible. The tribunal must always consider whether the circumstance that has given rise to the possible need for an adjournment could have been avoided by one of the parties. This is so in domestic law
30R v The Medical Appeal Tribunal (Midland Region) ex p Carrarini [1966] 1 WLR 883 at 888. and under article 6.
31R (Lappin) v HM Customs and Excise [2004] EWHC 953 (Admin). If it could have been avoided, that is a factor against an adjournment. However, it is not necessarily decisive. For example: a party who is not represented and does not understand the nature of the proceedings may not realise what is required until the hearing.
The impact on the parties and on the tribunal system
8.109In
Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5),
32[2008] 1 WLR 2380. Lightman J decided that the overriding objective applies to the exercise of the discretion. This requires the tribunal to take account of the interests of the parties and the impact of the adjournment on other parties and on the system as a whole.
8.110As regards the case for an adjournment, the tribunal will have to assess the reasons given and to evaluate their impact in the context of competing interests. The former requires the tribunal to make its own assessment of whether an adjournment would achieve its purpose and not just accept the argument put by the party. It cannot do this if the application is not sufficiently specific on that purpose. For example: on an application to adjourn for further evidence, the tribunal will have to consider the nature of the evidence sought, the chances that it will be obtained, and its likely significance for the party’s case if it is.
8.111In assessing the effect of a failure to adjourn, the tribunal may have to take account of the strength of the party’s case as it stands. The merits are a potentially relevant consideration.
33Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5) [2008] 1 WLR 2380 at [21]. However, they may depend on whether or not the adjournment is granted. For example: it may determine whether more evidence will be available. And it may affect the chances of success. For example: the presence of a representative may have an impact on the likelihood of success.
8.112It is tempting to consider that a case is clear and that further delay would serve no purpose. But it is wise to bear in mind the judicial experience recorded by Megarry J in
John v Rees:
34[1970] Ch 345.As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence events.
35At 402.8.113As regards the other party, the tribunal will have to consider whether an adjournment would cause any prejudice or detriment. Part of that assessment will involve a consideration of the motivation behind the application. An application inevitably means that one of the parties or a representative wishes to delay the progress of a case. That may be for legitimate reasons. For example: it may be in order to obtain more evidence. Or it may for be for an illegitimate tactical reason. For example: it may preserve a party’s right to remain in the United Kingdom pending the final determination of a claim for asylum or it may delay the time when an overpayment of benefit has to be repaid. The tribunal has to decide whether the purpose identified, the explanation given or the alleged impact on the party is genuine or specious.
8.114As regards the interests of other cases and of the tribunal system as a whole, an adjournment will result in delay for other cases as they make way in the listing for the adjourned case. Individually, this may not seem significant. However, cumulatively adjournments have a bigger impact on the progress of the tribunal’s caseload.
8.115It is also relevant to take into account whether the adjournment would allocate more than an appropriate share of the court’s resources to the case and whether the parties and their representatives had behaved responsibly.
36Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5) [2008] 1 WLR 2380 at [19].8.116It is wrong to adjourn indefinitely.
37Farwell J in Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 at 38. A lengthy delay will most likely be justified by the need to await for a lead case or for an authoritative ruling from a higher court. That is considered under the principles applicable to staying a case: see chapter 7.
Applying for an adjournment
8.117The way that a tribunal handles an application for adjournment and the factors it must take into account when doing so indicate how an application should be presented. Ideally, it should:
•say what purpose an adjournment will serve;
•explain why it has become necessary;
•provide evidence in support, such as a medical certificate, which should be as specific as possible;
•say why the difficulty could not have been avoided or anticipated;
•say why alternative steps could not be taken to avoid delay. (For example: if a representative is not available, why another representative could not be found);
•say what the effect will be for the party if the case proceeds;
•say how soon the case can be relisted. A delay for a specific time or to await a particular event is more likely to succeed that one for an indefinite and unspecified period.
8.118It is a mistake to assume that an application will be granted. Parties and representatives often fail to attend the hearing on the assumption that it will not proceed. This is a mistake. The tribunal will consider the application on its merits. If the merits do not justify an adjournment, the hearing will proceed. This is the risk that a party runs. In some cases, such as illness, attendance may not be an option.
Directions on an adjournment
8.119Whenever a case is adjourned, it is good practice for the tribunal to review the case and consider whether any directions are appropriate to ensure that the hearing is effective when the case is relisted.
The decision and reasons
8.120If there is doubt whether or not a hearing was adjourned, the issue is resolved by reference to the substance of what was done, not by the language used.
38Barnsley v Marsh [1947] QB 672; R v Sekhon [2003] 1 WLR 1655 at [48].8.121In some circumstances, it may be necessary to give reasons for a decision regarding an adjournment. Failure to give reasons may make the decision wrong in law, unless the reason is obvious.
39See the reasoning of Lord Parker CJ in R v The Medical Appeal Tribunal (Midland Region) ex p Carrarini [1966] 1 WLR 883 at 888 and of Laws LJ in Carpenter v Secretary of State for Work and Pensions reported as R(IB) 6/03 at [23]–[24].Challenging the exercise of the discretion: appeal and judicial review
8.122A decision on an application to adjourn a hearing may be appealable. In
Re Yates’ Settlement Trusts,40[1954] 1 WLR 564. Sir Raymond Evershed MR set out the principle:
… if a judge adjourns or refuses to adjourn a case, he has performed a judicial act which can be reviewed by the Court of Appeal; although I need not say that an adjournment or a refusal of an adjournment is a matter which
prima facie is entirely within the discretion of the judge. The Court of Appeal would, therefore, be very slow to interfere with any such order, but there is no doubt that the Court of Appeal has jurisdiction to entertain appeals in such matters.
41[1954] 1 WLR 564 at 621.8.123Whether or not a decision is appealable depends on the scope of the right of appeal. It is not an excluded decision from the right of appeal under section 11 TCEA and it is within the general meaning of ‘decision’ in section 11. A refusal to adjourn was held to be a decision under section 11(1) of the Tribunals and Inquiries Act 1992.
42Priddle v Fisher & Sons [1968] 1 WLR 1478.8.124The extent to which a decision may be challenged on appeal depends on whether the appeal lies on fact or law or both. If an appeal lies only on an issue of law, it will not necessarily be sufficient to show that the decision was based on a mistake of fact.
43Du Parcq LJ in his dissenting judgment in Dick v Piller [1943] KB 497, approved in principle but not on the facts of the case by Scott LJ.8.125In practice, the issue may not be of great importance. If a refusal to adjourn has affected the outcome of the case, it will show an error of law in the decision ultimately made. And in practice there may not be time to challenge a decision, especially a refusal, before the case is heard. Only long adjournments are likely to give rise to any injustice.
Showing an error of law
8.126The basis on which the exercise of a discretion to adjourn will be wrong in law is governed by the same principles as any other discretion.
44See chapter 4.8.127In some cases, this has been expressed in terms of the process by which the discretion was exercised. So, courts refer to the exercise being wrong in principle, which includes taking account of irrelevant considerations and overlooking relevant ones
45Croom-Johnson J in Dick v Piller [1943] KB 497 at 507. and deciding arbitrarily.
46Farwell J in Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 at 39.8.128In other cases, it has been expressed in terms of the effect on one of the parties. So, courts refer to the justice or injustice to the parties. In
Rose v Humbles,
47[1970] 1 WLR 1061. Buckley J said:
… if the discretion has been exercised in such a way as to cause what can properly be regarded as an injustice to any of the parties affected, then the proper course for an appellate court to take is to ensure that the matter is further heard.
48[1970] 1 WLR 1061 at 1071.And in
Maxwell v Keun,
49Maxwell v Keun [1928] 1 KB 645. Lawrence LJ noted that the requested adjournment would not prejudice the other party.
50[1928] 1 KB 645 at 659. See also Royal Bank of Scotland v Craig (1997) 39 LS Gaz 39. In the same case, Atkin LJ referred to an exercise of the discretion that defeated and destroyed the rights of one of the parties, linking this to the justice of the case:
… in the exercise of a proper judicial discretion no judge ought to make such an order as would defeat the rights of a party and destroy them altogether, unless he is satisfied that he has been guilty of such conduct that justice can only properly be done to the other party by coming to that conclusion.
51[1928] 1 KB 645 at 657.8.129In practice, process and effect are often no more than different ways of stating the same defect, the one emphasising the cause and the other emphasising its consequence.