Will the court agree to adjourn a hearing based on a barrister’s non-availability?

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22 December 2021

In this blog, I consider the case of Rupert St John Webster v John Francis Penley, Witherbotham Smith Penley LLP - [2021] EWHC 3198 (Ch), 2021, which involved a claimant’s application to court to adjourn an application because his barrister was not available. 

It is not often that an application to adjourn a hearing merits comment. But this raises important issues about dealing with litigants in person and, arguably, access to justice.

Background

Mr Webster brought a claim for Professional Negligence against solicitors who had advised his parents in connection with a number of private client matters including estate planning advice in 1992, the preparation of their wills and the estate administration. The factual and legal background to the claim is long and complex. The detail of that background is not critical to this particular decision.

The Claimant issued proceedings against the solicitors on 9 February 2021. Mr Webster appears to have drafted his own Particulars of Claim. The solicitors argued that the claim was statute barred and in August 2021, applied to strike out the claim and or for summary judgment. It was also argued that the Claimant was owed no duty of care. This judgment is all about the listing of that application.

On 3 September the Defendant’s solicitors telephoned the court and provided dates of non-availability. They also sent an email to the Bristol Business and Property Court to which the matter had been transferred. They copied the claimant. The claimant emailed the court to advise that he hoped to provide his dates ‘early the following week’. This was not done.

On 10 September the Claimant’s counsel’s clerk emailed the general court office rather than Bristol Chancery Listing address or the Bristol Specialist email address. A copy was not sent to the Defendant. The hearing was listed for 2 December 2021 and the parties were notified on about 11 September. The judge’s clerk was unaware of the 10 September email that had gone to the wrong address. At a conference in October 2021 the penny dropped that the claimant’s counsel was unavailable on 2 December. This barrister was familiar with the long history of the case and, significantly, was acting pro bono. For some reason it wasn’t until 11th November 2021 that the claimant applied to adjourn the trial based on counsel’s non availability.

On 22 November HHJ Paul Matthews wrote–

 ”Please tell the parties I have considered the further emails. The fact remains that the dates to avoid were sent to the wrong email address and my then clerk did not see them. Then when she notified the date to the parties, no complaint was made. it is too late to change now, as this would mean adjourning off into the New Year. Mr Webster has plenty of time to find another representative.”

The claimant’s application

The claimant applied to adjourn the hearing due to his advocate’s non availability. He alleged in a skeleton argument that court had listed for this date in error. The judge noted that , in fact, the claimant had firstly, failed to advise of non-availability dates. Then his counsel’s clerk had sent an email to the wrong address. 

The court’s decision

The application to adjourn was rejected.

Two questions arise from this. Should the court have accommodated the Claimant’s failure to correctly advise the court of non-availability, because he was a litigant in person? The judge found as a fact that the court had done this. The claimant himself had advised that he would provide details of his dates to avoid and did not do so. The claimant also alleged that care should have been taken by the court to avoid clashes with counsel’s availability. In fact, there is no such rule. His barrister’s clerk had sent an email to the wrong address.

The strongest argument for the claimant concerned access to justice. He said that to deprive him of his chosen counsel would breach his human rights. Although not explicitly stated, this was taken as a reference to his right to a fair trial under Art 6 as there would no equality of arms.   The judge firmly rejected any breach. He found that the claimant –

… is a well-educated, intelligent and articulate man who is perfectly capable of explaining complex points of fact and law (indeed, often somewhat recondite), and otherwise of instructing counsel when necessary, sitting behind him and passing numerous notes forward for counsel’s attention, many of which, I have noticed, result in further (usually helpful) submissions to the court. It appears that he (and not counsel) settled the detailed particulars of claim in the present case, and prepared his two written submissions”

But what about Counsel’s fees? It was highly unlikely that he could instruct new barrister on a pro bono basis. The judge acknowledged that this was “significant but it was not overwhelming”. He said that this claimant could represent himself and had done so in the past. There was no evidence that he could not afford to pay for representation. It was also noted that Mr Webster had brought ‘many legal proceedings’.

Comment

At first blush this decision causes concern. It seems harsh that a litigant in person is deprived of an adjournment so that he can represented, by counsel familiar with a complex case and who is acting for no fee. On the other hand, there are unusual features. The court does seem to have tried to accommodate him. He is intelligent, articulate and it seems, very familiar with litigation. He drafted his own particulars of claim. Most significantly, there was no evidence, that the loss of a pro bono advocate would deprive him of effective representation in the absence of evidence of limited means, in a matter where he was claiming £5m. He had adequate time to find a new representative.

This judgment turns on its very specific facts. It raises many questions. What if the claimant had not been well educated, intelligent and articulate? What if he was not familiar with conducting litigation? What if there was evidence that he could not afford to pay for a new barrister? As the courts move towards a time when there will be more and more litigants in person, these questions will become more and more prevalent.

© Melissa Worth, December 2021

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