Possession proceedings – Adjournment – Fairness – Respondent seeking possession of property – Appellant failing to file witness statement in defence because suffering bereavement and depression – Court vacating hearing dates on numerous occasions – Appellant seeking further adjournment claiming lack of capacity – Whether appellant suffering unfairness in trial continuing – Appeal dismissed
The respondent owned a property comprising workshops in London, E2. He occupied two units for his own business and rented out the remainder to other, unrelated individuals and businesses. In 2007, the respondent agreed to sell the property to the appellant who was represented by M, her business partner and close friend. Contracts for sale were negotiated and exchanged in August 2007. The respondent made a loan to the appellant to enable her to complete the purchase subject to an unregistered charge on the property.
When the appellant failed to repay the loan, the respondent issued proceedings for possession in July 2009. The appellant resisted the claim and made a counterclaim on the basis that the purchase had been a joint venture and, despite the explicit terms of the contract for sale, it had been agreed that all the units would be sold with vacant possession.
In March 2010, M died suddenly, precipitating a severe bereavement reaction in the appellant who was then diagnosed with depression. Medical reports indicated that the appellant was not in a psychological state to give or receive instructions regarding her business and the trial of the possession proceedings was adjourned on a number of occasions.
An application for a further adjournment at the start of the trial in November 2011 was dismissed by the trial judge who had formed the overwhelming impression that almost any tactic was going to be used to obtain an adjournment and enough was enough. The trial went ahead and the judge found in favour of the respondent and dismissed the counterclaim.
The appellant appealed contending that she had suffered fundamental unfairness in the trial continuing, given that she lacked capacity and was unable to attend the trial to give evidence or be cross examined.
Held: The appeal was dismissed.
The power of the court to adjourn a trial arose by virtue of CPR 3.1(2)(b) and the decision to do so was an exercise of judicial discretion on a case management decision. The overriding objective required cases to be dealt with justly. CPR 1.1(2)(d) demanded that the court dealt with cases expeditiously and fairly. Fairness required the position of both sides to be considered in accordance with article 6 of the European Convention on Human Rights and could only be determined by taking all relevant matters into account and excluding irrelevant matters.
It might be, in any one scenario, that a number of fair outcomes were possible. Therefore, a balancing exercise had to be conducted in each case. It was only when the decision of the first instance judge was plainly wrong that the Court of Appeal would interfere with that decision. Unless the Appeal Court could identify that the judge had taken into account immaterial factors, omitted to take into account material factors, erred in principle or come to decision that was impermissible, the decision at first instance had to prevail: Tanfern Ltd v Cameron MacDonald [2001] 1 WLR 1311; Aldi Stores Ltd v WSP Group plc [2007] EWCA Civ 1260, [2007] PLSCS 244; and Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5) [2008] 1 WLR 2380 considered.
In the present case, it was within the permissible limits of the exercise of discretion for the judge to have found that it was not unfair to the appellant for the trial to continue. The appellant and her legal advisers, who had been in place for several months, had had plenty of time to prepare her case. On the evidence before the court, the merits of the defence were poor and the court was entitled to conclude that it was very unlikely to be altered by the appellant’s evidence, particularly when the allegations were wholly at odds with the contemporaneous documentation.
The judge had been equally at liberty to conclude that there was no probability that the appellant would be of capacity if the trial were to be adjourned for a further 12-month period, especially since the litigation was, by the time of the trial, a cause of the depressive illness from which the appellant was suffering.
Michael Cronshaw (instructed by Miramar Legal) appeared for the appellant; Jonathan Titmuss (instructed by Clarke Barnes Solicitors LLP) appeared for the respondent.
Eileen O’Grady, barrister
