What factors should the court take account of in adjourning a trial?

We are often faced with questions when a final hearing is approaching asking about what will happen if the other side tries to adjourn or even our client wanting to adjourn!

The starting point for all Tribunals and Courts is that they should be reluctant to adjourn a final hearing unless there is good reason. The general principle is that given all parties will have had notice and will often have been involved in the whole listing process it would be against the overriding objective to adjourn trials given the expense and time that would be wasted.

Recently in the case of Dhillon v. Asiedu [2012]EWCA (Civ) 1020 the Court of Appeal issued guidance on the issues to be taken account of. The facts in the instant case are that the Appellant had taken a loan from the Respondent with the terms negotiated by a friend. The matter then appears to have been subject to litigation and the matter was listed for trial. Sadly shortly before this the friend died and the Appellant suffered a severe bereavement reaction. It would appear various trial dates were then adjourned and unless orders made and ultimately a litigation friend was appointed. At the trial date then fixed an application was made to adjourn on the basis that the Appellant was unable to attend, give evidence and be cross examined and it was fundamentally unfair to continue.

An interesting set of facts at probably the more extreme end of the scale and one can see that a court would have had sympathy with the Appellant given these circumstances.

The Court of Appeal set out the following guidance:

• Fairness requires the position of both sides to be considered and all cases must be dealt with justly, expeditiously and fairly. A number of outcomes are possible and only if the judge had failed to take account of relevant factors, had taken into account immaterial factors or come to a decision that was impermissible would the Court of Appeal interfere.

In this case the Court decided that the Judge was entitled to say that the late evidence of incapacity was not a sufficient factor as this could have been available sooner. Further he was entitled to say that the Appellant could have in the past filed evidence and complied with various unless orders. The oral agreement involving the deceased friend’s evidence was a key part and the Appellant could not have given material evidence on this in any event. It was accepted that the Appellant could attend the trial but she did have a litigation friend appointed to conduct her case. Taking all of these into account the Judge had to balance this against the fact that the Respondent lived abroad and had flown to the UK for the hearing which was the third time the case had been actually listed. On balance he was entitled to not agree the adjournment.

What is clear is that simply coming along on the day of the trial and seeking an adjournment is not going to find favour. If a party thinks they need an adjournment for whatever reason they should apply at the earliest opportunity and make sure they can go through all the reasons and try and demonstrate why this is fair and just. The courts are clearly entitled to take a robust stance with regards to such applications and the Court of Appeal will clearly be reluctant to interfere.

Filed under: England & Wales, litigation, possession

Why do Courts let Tenants make Unmeritorious Applications?

Many landlords and agents will have come across the situation where they have successfully been granted an Order for possession and then receive from the Court (often the day before execution of a warrant) an application from a tenant requesting the Court to set aside an Order on the basis of grounds either previously advanced at the original hearing; or on matters not strictly relevant to the possession process. For parties not experienced with the Court process this can seem inherently unfair to landlords; and be seen as the tenant simply “playing the system”. From the solicitors point of view it is also often frustrating having to explain to the Client that the process must be gone through before possession can be obtained.

The Courts are required to give proper consideration to any application made. Generally applications should be heard at an oral hearing at which both parties should have the opportunity to attend. Recently this approach was affirmed by the Court of Appeal in Frey and others v. Labrouche [2012] EWCA Civ 881 . In this case an application to strike out a claim was made. The Judge at the start of the hearing indicated that he thought the application was unsustainable and he was not going to hear from Counsel of the Appellant. The Appellant claimed that the judge’s refusal to hear the application was a breach of their fundamental common law right to present the case. The Court of Appeal agreed and stated that a judge could not properly dismiss the application without giving the applicant a fair opportunity to put its case. It was vital that justice was seen to be done.

Whilst it is accepted that judges can (and should under the Civil Procedure Rules) take a robust stance this does not preclude parties making applications and the Court should give proper consideration and allow oral argument. This is why applications, even when made at the eleventh hour are listed and heard even when this can delay the execution of a warrant or other process.

Filed under: England & Wales, comment, litigation

My Flat is Too Cold!

There has been an interesting decision in the case of Liverpool City Council v. Anwar Hadi Kassim [2011] UKUT 169(LC) relating to category 1 hazards under the Housing Health and Safety Rating System (“HHSRS”) of the Housing Act 2004 regarding lack of heating.

The facts are that Mr Kasssim owned a one bedroom ground floor flat in a terraced house. A Notice (a Prohibition Order) was served prohibiting use except by Mr Kassim as there was a category 1 hazard being excess cold and stated “There is no programmable, permanent, fixed and affordable heating in the dwelling. The level of thermal insulation to the dwelling is low”.

Mr Kassim appealed the notice under paragraph 7(10) of Part 3 of Schedule 2 of the Housing Act 2004. He contended that since the Notice he had double glazed all windows and installed an adequate heating system being various electric wall mounted heaters. The council contended that the heating system did not meet the requirements of the Notice because it was not capable of being affordable for a tenant to run the heating system. This contention relied upon Guidance issued by the Office of the Deputy Prime Minister in February 2006.

At first instance the Residential Property Tribunal agreed with Mr Kassim. It concluded that the heating system only had to be efficient and it should not judge the affordability in considering the health and safety aspects of the property. It therefore quashed the prohibition order.

The Council then appealed to the Upper Tribunal (Lands Chamber) saying that the affordability of the system was something which the Guidance referred to and under section 9(2) of the Housing Act 2004 there is a requirement to have regard to the Guidance. The Council put forwarded evidence that there was a need to have regard to affordability which arose from the requirement that any system should be energy efficient. Mr Kassim contended that the term “affordability” was not mentioned at all in the Guidance but “economically” was and in this context meant without waste. It was submitted on his behalf that any system was dependant upon the lifestyle of the occupant and which provider and tariff they chose to use.

The President of the Upper Tribunal determined that the affordability was of “potential relevance” and the cost of electricity was capable of being of relevance. Interestingly he made clear that the Guidance has no independent force but is there to assist in the application of the statutory provisions. The question was whether by reference to a “vulnerable group”, being those over 65, would be deterred from using the system as a result of the expense.

The matter was remitted for certain specific questions to be addressed by the Tribunal.

It is therefore important that in considering potential hazards and how these are addressed that consideration is given to all matters including any costs of operation of any system which may be passed on to an occupant. It is clear local authorities can require the installation of heating systems. Whilst the decision does not go as far as to say they can specify the exact type of system regard can be had to the cost of running any system to be installed particularly if the cost may mean that it will not be used. Each case will depend upon the specific property and the type (or actual) occupant of the same. The moral is that it is always best to try and work with the local authority as far as possible to avoid what was undoubtedly expensive litigation.

Filed under: England & Wales