COURT GRANTS DEFENDANT’S APPLICATION FOR AN ADJOURNMENT DUE TO THE ILLNESS OF LEADING COUNSEL

January 14, 2025 · by · in Applications, Civil Procedure

In  Manchester Property Development Holdings & Anor v Kuit Steinart Levy LLP [2025] EWHC 35 (Comm) Dame Clare Moulder DBE granted the defendant’s application for an adjournment of an imminent trial because Leading Counsel became unexpectedly ill.   There was insufficient time to instruct alternative Leading Counsel and it was unfair to the defendant to ask junior counsel to do the task alone.  Most significantly it is a case that will require the extensive cross-examination of witnesses and it was unfair to ask a counsel to take on the task at short notice, in this particularly heavy and difficult case.

 

“… our legal system is based on the oral presentation of evidence and submissions. Cross-examination plays a very significant role in our legal system in enabling the court to receive the best evidence from witnesses. Cross-examination of witnesses requires skill and extensive preparation.”

THE CASE

The claimant brought an action alleging professional negligence against the defendant firm of solicitors.  The claims were for £21 million for one claimant and 11 million the other.  The claim was listed for trial starting on the 20th January 2025, with three days pre-reading.

THE DEFENDANT’S LEADING COUNSEL’S ILLNESS AND THE APPLICATION FOR AN ADJOURNMENT

The defendant’s leading counsel became unwell on the 7th January 2025 and the defendant’s solicitors were informed of this on the 8th.  The  defendant considered instructing alternative leading counsel but concluded that, in the time available, this was not a fair or realistic option. The defendant, therefore, made an application for an adjournment of the trial.

THE JUDGE GRANTED THE ADJOURNMENT

The judge considered the issues relating to the prejudice to each party.  The claimant suggested a delay of one week to allow junior counsel to prepare.

 

    1. Turning then to the prejudice to the defendant if the adjournment is refused. The claimant has proposed a delay to the start of trial by one week to allow junior counsel for the defendant a two-week period to prepare, and in the alternative, suggested a possible extension beyond the trial window, which would allow the defendant say, three weeks to prepare. As referred to above, in my view the latter option is not possible within the Commercial Court list.

 

    1. Two versions of the draft timetable were before the Court at the PTR. The main difference between them is that one envisaged a week’s break for written closings; the other saw written closings fitted in over the weekend break and required the Court to sit longer than usual on two days. At the PTR, the Court’s decision was to adopt the longer timetable, but I accept that it would be possible to revert to a shorter and more compressed timetable. This would allow the trial to start a week later and still to finish as scheduled within the trial window.

 

    1. However, even if the timetable was adjusted and compressed in this way, at most it would only give the defendant’s junior counsel two weeks to prepare to cross-examine the entirety of the claimants’ witnesses, both factual and expert. The compressed timetable was originally rejected by the Court because it compressed the timetable and placed unnecessary burdens on both parties. It would therefore, it seems to me, place greater stress on junior counsel (including in relation to the preparation of closing arguments) if the court were to adopt the compressed timetable within the trial window, even assuming that it allowed sufficient time to prepare for cross examination which in my view is does not. If notwithstanding the Commercial Court listing constraints referred to above, additional time were able to be found after the end of the trial window only for closings, this could allow further time to prepare closings, but it would not assist junior counsel in terms of preparing for cross-examination.

 

    1. The delay of a week or two weeks would not allow the defendant sufficient time to find alternative leading counsel. I accept that junior counsel for the defendant in this case is very familiar with the issues and therefore most probably the documents, that he is experienced, and is likely to have had a major role in the preparation of the written openings. I have also considered that junior counsel was going to cross-examine some of the witnesses, although the court has been told that they were not the major witnesses and did not extend to the forensic accounting evidence. Were junior counsel for the defendant now to take over the entirety of the cross-examination, he may obtain some assistance from the notes already prepared by the defendant’s leading counsel, but I accept the defendant’s submission that the notes are of limited assistance and do not come close to providing a complete answer to the issue of lack of time to prepare to carry out cross-examination and generally to take over leading the case.

 

    1. In my view, it would not be fair to expect junior counsel, even an experienced junior counsel as in this case, to take over the cross-examination in this trial and to take it forward as the leader, either on the existing timetable or the slightly delayed timetable. I reached this conclusion not because of the ability of junior counsel, who is, as I have said, a senior junior; rather for the reasons that this is a long and a complex trial. I have in mind the three sets of expert evidence in this case and the issues which are covered in the expert reports, including the number of properties and the large number of variables which are in play in the forensic reports.

 

    1. Although junior counsel is familiar with the documentation, it is not the same as being prepared to lead the case, and it is no answer to the difficulty to suggest that other juniors could be brought in to assist and that the defendant can be expected only to make a short opening. To have a fair trial, the defendant should have a proper opportunity to defend the case brought against it. Whilst I accept that there is no need to have leading counsel present in every case, this is a very substantial trial, even in the Commercial Court. I note that the complexity of this matter resulted in counsel for the claimants recently seeking permission from the Court to file an opening skeleton of 90 pages rather than the usual Commercial Court limit of 50 pages and mindful of the issues which the Court had seen at the PTR, such permission was granted. It is a case in which it is to be expected that leading counsel would be instructed assuming that the party has the resources to do so, which, in this case, it appears to have.

 

    1. The overriding objective requires that, so far as practicable, the parties should be on an equal footing. In this regard, I take into account that Kuits is the defendant in this case, which has therefore been obliged to defend itself against a claim brought against it. In my view to force the defendant to proceed with the junior counsel on the current timetable to trial, or even within the current trial window, would be unfair and the resulting trial would be unfair.

 

Prejudice to the claimants

    1. The Court has to consider the prejudice to the claimants which would result from any adjournment and, in particular, the issue of the potential loss of funding and or the additional funding costs at which the claimants would incur, and whether this prejudice is such as to outweigh the unfairness to the defendant.

 

    1. As to funding, I accept that the claimants do not currently have funding for any additional costs. I also accept that it is not certain that the claimants would be able to secure further funding. However, the merits of the claim have not changed by what has occurred. On that basis, there is no grounds to suppose that, for that reason alone, additional funding to allow the matter to be taken to its conclusion would not be likely to be forthcoming. In my view, it seems more likely that the funder would wish to see the matter to conclusion, and, as referred to above, in my view, taken in context of the overall costs of the proceedings to date, the additional costs should be relatively limited.

 

    1. I accept that there is a risk that the delay and the need to apply for further funding may cause the funder to revisit the merits, but that would not be as a result of what has given rise to the application to adjourn. The risk is not enough to persuade me that the claimants will suffer irremediable prejudice should an application to adjourn be granted. As to the multiple, I accept that the period is extended; although, as I have already said, the risk is unchanged. The precise impact is unknown, given that the claimants understandably do not wish to give further details and have had little time to consider this issue given the imminence of the trial and the need for this application to be resolved quickly. As to the additional ATE premium, the need for this is also unknown as is the amount involved. Whilst therefore I do not discount it, it is again not enough to persuade me that the claimants will suffer irremediable prejudice.

 

Conclusion

    1. Even if the claimants may (or will) suffer irremediable prejudice on an adjournment by reason of the funding implications, on the authorities referred to above, “uncompensatable injustice to the other party may be a ground for refusing an adjournment” [emphasis added] but does not require the Court to refuse an adjournment. In deciding whether to adjourn the trial, the Court must have regard to the overriding objective. It is extremely unfortunate that leading counsel has been taken ill at such a late stage but, as has been recognised, this is not the fault of either party. I am extremely reluctant to adjourn such a substantial trial, given the matters referred to above. However, our legal system is based on the oral presentation of evidence and submissions. Cross-examination plays a very significant role in our legal system in enabling the court to receive the best evidence from witnesses. Cross-examination of witnesses requires skill and extensive preparation.

 

  1. Weighing the conflicting considerations discussed above, I find that in the circumstances, the defendant could not have a fair trial on the current trial timetable or within the current trial window and, on balance, I find that the prejudice to the defendant in refusing an adjournment outweighs the other factors. I am not persuaded that the unfairness to the defendant is outweighed by any potential prejudice which may accrue to the claimants, and although I accept the potential funding implications for the claimants which may result from an adjournment, in my view, the balance in this case lies in granting the application to adjourn the trial.
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