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Medical misfortune is a reason to miss Court, as long as it’s sufficient

  • May 31, 2016
  • Mike Massen
  • Comments Off on Medical misfortune is a reason to miss Court, as long as it’s sufficient


A recent Court of Appeal decision involving a professional negligence claim against a Yorkshire based financial advisor has provided useful guidance as to the tactical considerations required of parties where one side applies to adjourn trial at the eleventh hour based on “medical grounds”.

In this particular case (Mohun-Smith v TBO Investments) Mr and Mrs Mohun-Smith succeeded in obtaining a Judgment against TBO at trial in June 2014 and were awarded damages in excess of £2M. Shortly before trial TBO found themselves in the unfortunate position of being unable to continue to fund their representatives and therefore had to represent themselves at Court.

In a further twist of ill-fortune before the trial started the director of TBO who had dealt with the case for its entirety had very unfortunately fallen ill, and an application was filed seeking an adjournment of the trial, supported by medical evidence from the director’s GP (stating family stress and stress due to the impending proceedings). At trial, with no representatives of TBO present, the Judge dismissed the application for an adjournment, struck out the Defence and awarded the Claimants significant damages as referred to above. The reasons given by the Judge were that TBO had not shown that one of the other directors could not have represented the company and further, that the medical evidence supplied was wholly insufficient.

TBO proceeded to seek an application to have the Judgment set aside. However, this application failed on the same basis that the Judge had refused the adjournment.

TBO appealed the decision and the Court of Appeal has now overturned the Judgment, stating that the Judge at first instance had adopted a “too rigorous approach” in dealing with the application to set aside Judgment. The Court of Appeal found that this was a complex case where the director in question needed to be present partly due to the fact that that director had been dealing with the case for its entirety (18 months) and partly due to the fact that the other director of TBO had very little knowledge of the case and was not in a position to take the case forward both factually and legally. It was also held that whilst it would have been better if the medical evidence had been more comprehensive (as suggested by the trial Judge) it was sufficient.

This case highlights the approach taken by a Court when considering whether to set aside a Judgment for failure to attend. It is clear that so long as the applicant makes a prompt application, has a good reason for not attending (illness being a good reason) and reasonable prospects of success, it would be a very exceptional case where the Court would not set aside Judgment.

From a practical point of view, parties faced with an application from the other side to adjourn a trial at the eleventh hour should think one step ahead and consider whether or not any Judgment obtained in the other party’s absence would remain standing should a subsequent application be made to set aside that Judgment. It may well be a better tactical decision to agree to an adjournment of the trial rather than risk the prospect of a further application being made to set aside previous Judgments, thereby wasting further costs and time. Whilst Mr and Mrs Mohun-Smith may eventually succeed in their claim, the fact is that this is going to be at least two years after the date of the original trial and presumably with them being considerably out of pocket as a result of the last two years of litigation.

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