Challenges to a failure to adjourn seem to be popping-up at the moment. There was the recent decision of the Court of Appeal in Solanki v (1) Intercity Telecom Ltd (2) Guidinglight Finance Ltd [2018] EWCA Civ 101 – where a judge had failed to give adequate reasons for rejecting medical evidence justifying an adjournment. By contrast, in the recent decision of Lindsay v Solicitors' Regulatory Authority [2018] EWHC 1275 (Admin), the respondent in misconduct proceedings failed to advance adequate evidence to support such an application. What lies deeper beneath, however, is whether an appeal against a decision not to adjourn requires the appellate court or tribunal to consider whether the original decision lay within the range of reasonable responses open to the decision maker below or, alternatively, has to determine the question of fairness / correctness itself.

The facts

A solicitor was alleged to have obtained just shy of £6,000,000 from an investment fund, when it was improper to do so, leading to substantial losses. On 18th January 2017, the solicitor applied for an adjournment on the basis that he was too unwell to attend the hearing. The tribunal dismissed the application but, at a case management hearing on 25th January 2017, ordered the solicitor to authorise disclosure of his medical records and renew an application by 8th February 2017.

The solicitor provided a letter from his treating cardiologist but no medical records, in respect of which the tribunal made an unless order for their provision. The tribunal then instructed an expert who opined that the solicitor could participate in a disciplinary hearing with suggested reasonable adjustments.

The solicitor declined to be examined by an independent consultant psychiatrist and failed to provide the medical records. On 24th October 2017, the tribunal, having received the solicitor’s written representations, dismissed an application to say the proceedings on medical grounds. On the first day of the misconduct hearing, on 20th November 2017, the panel rejected the solicitor’s further written application for a stay or an adjournment and proceeded in his absence.

The judgment

Slade J, in the High Court, reviewing the tribunal’s decisions, repeated that an application for a stay or an adjournment on medical grounds must be supported by proper medical evidence, referring to The Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 734 at [48]-[50].

There, Vos J (as he then was) in turn referred to other authorities, to the effect that proper medical evidence was required for a court to exercise its discretion to adjourn on medical grounds. There was no consideration of an employer’s own obligations under the Equality Act 2010. As to what was required, Vos J repeated that stated by Norris J in Levy v Ellis-Carr [2012] EWHC 63 (Ch), concerning an adjournment of a hearing in the Chancery Division to determine beneficial entitlement to property. At [32]-[36]: [emphasis added]

The decision whether to grant or to refuse an adjournment is a case management decision. It is to be exercised having regard to the “overriding objective” in CPR 1. Showing that the exercise of discretion was outside the generous ambit within which there is reasonable room for disagreement is not an easy task: see Khudados v Hayden [2007] EWCA Civ 1316…

Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation…

In my judgment [the evidence] falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination… No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).

Slade J further referred to Andreou v Lord Chancellor [2002] EWCA Civ 1192; [2002] IRLR 728 at [35], where the Court of Appeal held that a decision to adjourn was a matter of judicial discretion and that:

There is no doubt but that the exercise of discretion by a tribunal, particularly in relation to a case management matter such as whether there should be an adjournment, is one with which the EAT should be slow to interfere, and then only on limited grounds. There is no dispute but that such grounds include perversity. It is also clear that where the consequences of the refusal of the adjournment are severe, such as when it will lead to the dismissal of the proceedings, the Tribunal must be particularly careful not to cause an injustice to the litigant seeking an adjournment: see my remarks in Teinaz v London Borough of Wandsworth (unreported) 16th July 2002 …

Slade J held that the medical evidence that the solicitor had produced was inadequate and, further, that he had been deliberately obstructive. She concluded that the tribunal’s exercise of its discretion in not adjourning the disciplinary proceedings was lawful and had to be dismissed.

Commentary

What is interesting about this case is not so much the result as the approach to appeals against decisions not to adjourn. Here, the court came close to adopting a ‘band of reasonable responses’ test for appeal – particularly in Andreou which referred to the Employment Appeal Tribunal's interfering with case management decisions only on limited grounds, including perversity. The reference to Teinaz v LB Wandsworth [2002] EWCA Civ 1040; [2002] ICR 1471 in that case is shared with the case of Solanki, about which I wrote here.

In Solanki, however, the court took what is arguably a different approach, referring not only to Teinaz and Andreou but also Terluk v Berezovsky [2010] EWCA Civ 1345. There, at para [18], Sedley stated plainly: [emphasis added]

Our approach to this question is that the test to be applied to a decision on the adjournment of proceedings is not whether it lay within the broad band of judicial discretion but whether, in the judgment of the appellate court, it was unfair. In Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, Lord Hope said (at §6):

"[T]he question whether a tribunal … was acting in breach of the principles of natural justice is essentially a question of law."

A resolution of this is attempted in Terluk at para [20], where Sedley J stated:

... whether a procedural decision was fair does not involve a premise that in any given forensic situation only one outcome is ever fair. Without reverting to the notion of a broad discretionary highway one can recognise that there may be more than one genuinely fair solution to a difficulty… it is where it can say with confidence that the course taken was not fair that an appellate or reviewing court should intervene. Put another way, the question is whether the decision was a fair one, not whether it was "the" fair one.

Still, there Sedley expressly disclaimed reference to what he referred as the “broad discretionary highway”. Similarly, in Solanki, Gloster LJ stated at [32]:

… the jurisdiction of this court is not confined simply to considering whether irrelevant factors were taken into account, or relevant ones were ignored in the Wednesbury sense, or whether the decision not to adjourn lay within the broad band of judicial discretion of the trial judge. Rather, the authorities make clear that, in reviewing the exercise of discretion, the Court of Appeal has to be satisfied that the decision to refuse the adjournment was not "unfair".

None of these cases directly disagree with each other. However, there is an important difference of emphasis on whether the court should review the decision below and consider whether it falls outside the broad ambit of discretion or judge the fairness of the decision afresh without deference to the band of discretion. In Lindsay, Slade J tended more towards the former, recording at [54] that the tribunal had, at each stage, correctly directed itself on the law and the principles to apply to adjournments and at [76] that she considered the tribunal’s exercise of its discretion in deciding not to stay or adjourn the proceedings to be lawful. In Solanki, the court tended towards the latter.

The difference is not trivial - an appellate tribunal which considers whether a decision taken below lies within the band of reasonable discretion asks whether the decision maker was entitled to reach the decision they did rather than itself determining the merits. Where, however, the appellate tribunal seeks to determine whether the decision was unfair (or wrong), it decides the issue for itself. In police misconduct hearings, such an appeal would proceed by Police Appeals Tribunal Rules 2012 rule 4(4)(c). This would require the Police Appeals Tribunal to decide for itself whether the failure to adjourn was unfair - but would it do so by collapsing the question back into whether the decision was within the discretion of the police misconduct hearing? Your author considers that the correct approach is that set out in Solanki and Terluk - but it only takes an unforeseen set of facts to change one's mind.