Adjournment Of Trial Denied

National Westminster Bank Plc V Aaronson & Anr (2004)

The judge had been correct not to allow an adjournment of a trial or to set aside the subsequent judgment where the defendant had notice of the date fixed for trial from correspondence with the claimant and had the opportunity to be prepared for trial.

The defendants (D) appealed the decision of the county court to refuse to adjourn the trial of a claim by the claimant (C), and also appealed the refusal of the county court to set aside the subsequent judgment. As part of the management of the case the parties were asked to provide the court with dates to avoid for trial.

The court listed the trial on a date that D wished to avoid. D contacted the court listing office who allegedly told D that the trial would be vacated for that date. The matter was subsequently referred to a judge who ordered the trial date should remain and that if either party wished to change the trial date they should apply on notice to him. D alleged that it had not received a copy of that order.

Three months later C wrote to D to arrange a meeting between expert witnesses. D did not reply to C but wrote to the court to query the trial date. The court did not respond. Ten days before trial D received a trial bundle from C and then wrote to the court that the trial appeared to have been listed in error. On the date fixed for trial D's counsel had instructions to seek an adjournment but had no further instructions from D who was unavailable.

The judge refused the application to adjourn on the basis that even if D had not been directly informed by the court of the trial date it had to have realised from C's correspondence when the trial was commencing. The judge heard the case and gave judgment in favour of C. D's application to set aside the judgment failed. The judge held that D had no good reason for not being ready for trial, that they should have adopted a more proactive approach and could have instructed counsel for trial even at a late stage. D appealed the refusal of both applications.

HELD: In the circumstances of the case the judge had not erred in his approach to either application and he was entitled to exercise his discretion to refuse both applications. Brazil v Brazil Times, October 18, 2002 considered.

Appeals dismissed.

Civil Procedure

QBD (Royce J) 9/3/2004

LTL 9/3/2004 Extempore (Unreported elsewhere)

Document No.: AC9609626