The case of Naylor emphasises that non availability of counsel is an unsatisfactory reason for seeking an adjournment of a trial date with adjournment of trial on this basis a last resort.
The Claimant brought an action for Clinical Negligence. Liability and causation were both admitted with quantum disputed. The Claimant brought an action seeking permission to rely on supplementary expert reports, an extension of time for service of the parties’ updated schedules and an adjournment of trial due to the need to set out realistic timetables and the unavailability of counsel. The application was heard two months before the start of the trial window.
Fordham J first considered the issue relating to counsel’s availability. Claimant’s counsel, who had acted for the Claimant throughout these proceedings, had become unavailable due to Covid-19 timetable changes relating to a separate public inquiry matter. The consequences were set out in the Claimant’s solicitors’ witness statement, in which they claimed that the prospects of securing counsel with “commensurate skills and experience and the availability to deal with the preparation of expert evidence” were slim (para 6). Citing Bates v Post Office Ltd, Fordham J found counsel’s unavailability came “nowhere near providing a basis for adjourning the trial”, with adjournment of trial being a “last resort” (para 7).
Turning to the original basis for adjourning trial, namely, timetabling issues, the question arose as to whether the “quickest realistic timetable” for the various steps still outstanding made it necessary to vacate the existing trial window should the Court grant permission to rely on supplementary expert reports. Claimant’s counsel stressed the need for a timetable with sufficient room to promote opportunities for settlement and avoidance of unnecessary cost. Finding no difficulty with the Claimant being given permission to rely on an updated witness statement, Fordham J did not accept that the “timetable will stand to produce a position involving unnecessary and avoidable cost to the public purse”, and, therefore, there was “no justification for the last resort for adjourning the trial” (para 11).
Fordham J ordered costs in the case on the basis that the Defendant “did not accede to permission to rely on addendum expert reports together with an extension of time and a timetable”. Had the Defendant communicated appropriately, no costs would have been necessary.
James Counsell QC, a barrister in Outer Temple’s clinical negligence team commented on the case as follows:
This decision is a very fact specific one (as are all applications such as these) and it was no surprise that the Court declined to vacate the trial date, two months before it was due to start, a step which as the Judge said, is very much a last resort. Despite the obvious anguish that will be caused to a party, Counsel’s convenience comes pretty low down on the list of priorities when a trial date has already been fixed. There would need be a very compelling reason to vacate and none existed.”
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