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John Small of 36 Civil in the Court of Appeal on a pro bono basis.

2nd March 2018

In Solanki v Intercity Technology Limited et al [2018] EWCA Civ 101 the Court of Appeal has reiterated the need for Judges to give careful and proper consideration to applications for adjournments of trials on the grounds of ill health. Mr Solanki was an employee of the Respondent and resigned claiming constructive dismissal. The Respondent subsequently issued proceedings against him for breach of contract and database rights; delivery up of confidential information; and injunctive relief in respect of customer information which had been downloaded onto memory sticks. In addition to which the Respondent also issued contempt proceedings against Mr Solanki. Mr Solanki subsequently admitted to two contempts of court and agreed to purge his contempt, which resulted in a fine of £2500 against him.

The trial of the matter was listed for 5 days at the Mercantile Court before HHJ Brown QC starting on 24 February 2015. On 11 February 2015, Mr Solanki applied for legal aid for the trial and to have the trial adjourned for one month in order for him to get representation. The trial Judge refused his application but provided no reasons as to why. On 18 February 2015 Mr Solanki attended his GP and emailed the Court on 20 February 2015 stating that he had been assessed by his GP who had advised that he was not fit to stand trial. Accordingly, Mr Solanki again asked the trial Judge to adjourn the trial for a period of 6-8 weeks in order to give himself proper time to recover and to prepare. Mr Solanki renewed his application on 23 February 2015 and enclosed a letter from his GP confirming that he was suffering from depression and severe anxiety and was being prescribed with anti-depressant medication.

On 23 February 2015 the trial Judge refused the applications on papers and as before he failed to give any reasons for his decision. On the first day of the trial Mr Solanki did not attend and instead made another application for an adjournment on the basis that he was too ill to attend and that his Article 6 ECHR right to a fair hearing would be breached if the adjournment was not granted.

The trial Judge again dismissed Mr Solanki’s application and the trial proceeded in his absence whereupon the first step the Respondent took was to apply to have Mr Solanki’s defence struck out under CPR 39.3 on the grounds that the defendant had not attended trial. The trial Judge acceded to that request and subsequently awarded the Respondent damages in the sum of £290,009 plus costs summarily assessed on an indemnity basis of £68,959.25.

On 9 March 2015 Mr Solanki applied to set aside the Judgment under CPR 39.5 and adduce further witness evidence. On 11 March 2015 the trial Judge refused the application on the papers and again failed to give his reasons for doing do.

Mr Solanki thus appealed to the Court of Appeal arguing that the trial Judge was wrong not to adjourn the hearing; was wrong not to set aside his Judgment; and was wrong to summarily assess costs for the contempt matter in the sum of £69,933.72.

The Court of Appeal, Lady Justice Gloster, giving Judgment, allowed all of Mr Solanki’s grounds of appeals and remitted the matter back to the Commercial Court for a retrial. Gloster LJ reiterated the material difference between applications to adjourn and applications to set aside under CPR 39.5 in that in the latter the Court should not adopt a too rigorous approach as to whether a good reason for non-attendance had been shown (applying Mohun-Smith v TBO Investments Ltd [2016] EWCA Civ 403) as opposed to the former where it would only be rare circumstances that an adjournment would be granted (applying Teinaz v London Borough of Wandsworth [2002] IRLR 721).

In this case Lady Gloster held that it was one of those rare cases where the refusal to grant the adjournment on the grounds of ill-health amounted to a denial of justice.

It was clear that the trial Judge was of the mind that Mr Solanki was “putting on an act” and as such he was wholly wrong to substitute his own views for that of the professional medical evidence that was provided by the GP.

The decision thus stresses the careful evaluation the Courts need to undertake when assessing whether or not to grant an adjournment of the trial and failure to do so will no doubt result in a successful appeal. This of course entails a detailed assessment of any medical evidence and it will not be enough to simply dismiss this evidence without providing cogent reasons as to why this has been done.

John Small of 36 Civil represented Mr Solanki in the Court of Appeal on a pro bono basis.

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