Simou v Salliss & Ors [2017] EWCA Civ 312

Case No B5/2015/2014

[2017] EWCA Civ 312

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT BRIGHTON

His Honour Judge Coltart

Claims: ITN1063 and ITN1094

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28/04/2017

Before

THE MASTER OF THE ROLLS

LORD JUSTICE BEATSON

LORD JUSTICE HENDERSON

Between

TERRY SIMOUClaimant/

(2) HAZEL SALLISSDefendants/

CHRISTIE GREENFIELDClaimant/

Mr Matthew Collings QC (instructed by Howes Percival LLP) for Appellants

Mr Charles Joseph (instructed by Pritchard Joyce & Hinds) for 1st Respondent (Mr Simou)

Mr Nicholas Baldock (instructed by Heringtons LLP) for 2 nd Respondent (Ms Greenfield)

Hearing Hearing date: 14 March 2017

Judgment

Introduction

[1]The issue on this appeal is one of procedural justice: was the trial judge (His Honour Judge Coltart, sitting in the County Court at Brighton) wrong to refuse two applications to adjourn the trial of two actions which were heard together over ten days between Monday 20 April and Friday 1 May 2015, because of the ill health (or alleged ill health) of the first defendant, Mr Michael Salliss? The second defendant (“Mrs Salliss”) is the wife of Mr Salliss. The appeal is brought with permission granted by Vos LJ on 7 September 2015.

[2]Mr and Mrs Salliss were litigants in person during and immediately before the trial, although they had previously been represented at various stages by counsel and/or solicitors, including at a pre-trial hearing before the same judge on Friday 10 April 2015. As I shall explain, Mrs Salliss also enlisted the services of counsel on a direct access basis in connection with the second application for an adjournment.

[3]The first application to adjourn was made by Mrs Salliss, informally by correspondence with the court, on behalf of her husband, in the week before the start of the trial. Although a decision on the application was promised by the court office, it is unclear whether it ever reached the judge, and on the first day of the trial the application was implicitly refused because the judge proceeded with the trial in the absence of Mr Salliss, who had a hospital appointment.

[4]The second application was made during the second week of the trial, again by Mrs Salliss on behalf of her husband, although she had instructed counsel on the previous day to send a written request for an adjournment to the judge. The application was refused by the judge in a ruling which he gave on the morning of 29 April. Having given this ruling, he refused to grant permission to appeal and the trial proceeded to its conclusion.

[5]In the extempore judgment which he gave on 1 May 2015, the judge found in favour of the claimant in each action and orders were drawn up accordingly. The present appeal is therefore against those final orders, and lies to the Court of Appeal, whereas an interim appeal against the refusal of the adjournments would have lain to the High Court. As Vos LJ observed when granting permission to appeal, the appellants cannot be criticised for not bringing an interim appeal, because they were not given that opportunity. Nevertheless, the only grounds upon which they seek to challenge the substantive orders made at the conclusion of the trial are the two refusals of an adjournment which I have identified. The relief sought is a re-trial, on the basis that Mr and Mrs Salliss were denied an effective opportunity to engage in and make representations at the trial because of Mr Salliss’s debilitated condition.

[6]Mr and Mrs Salliss have been represented on the appeal by solicitors (Howes Percival LLP) and leading counsel (Mr Matthew Collings QC). I record my gratitude to Mr Collings for the clear and realistic way in which he presented his submissions when opening the appeal. After hearing him, we decided that it was unnecessary to call on the respondents, with the result that the appeal had to be dismissed. We said that we would give our reasons in writing later. In this judgment I explain why I reached that conclusion.

The background to the two actions

[7]Both actions may broadly be described as boundary disputes. The parties are neighbours at Hurst Green, Etchingham, in East Sussex. Mr and Mrs Salliss own and live in a substantial property now known as Hays Mill Oast (“the Oast”). The claimant in the first action, Mr Terry Simou, owns a smaller adjoining property at Watermill House (“the Mill”). The claimant in the second action, Ms Greenfield, owns some land at Bugsell Mill (“the Land”) which also adjoins part of the Oast. All three properties (the Oast, the Mill and the Land) were formerly in common ownership.

[8]It is unnecessary to describe the background to either action in detail.

[9]In the first action, begun in September 2011, Mr Simou alleged that Mr and Mrs Salliss had moved boundaries and trespassed on his land, that rights of way had been obstructed, and that acts of nuisance and harassment had been committed by Mr and Mrs Salliss. He sought a declaration as to the boundaries on the eastern side of his property, an order for abatement of trespass, and damages. All of these allegations were denied by Mr and Mrs Salliss.

[10]In the second action, begun in October 2011, Ms Greenfield alleged obstruction and interference with a right of way which was exercisable “at all times and for all purposes” over a roadway running from the Oast to the Land. She claimed a declaration of her entitlement to the right of way, an injunction and damages. Mr and Mrs Salliss admitted the existence of a right of way, but denied the alleged acts of obstruction and interference, and counterclaimed for a declaration that the use of the right of way was subject to various limitations by reason of its physical nature and the way in which it had been used at the date of its grant.

[11]Unfortunately, relations between each claimant and (in particular) Mr Salliss had become very strained over the period of the disputes, and serious allegations of harassment were made against him by each claimant. These were among the numerous issues of fact which had to be determined by the judge at trial. There were also issues of law, and expert evidence was adduced in each case. In the Simou proceedings, expert surveyors were instructed on each side: Mr Darling for the claimant, and Mr Hillier for the defendants. In the Greenfield case, there was a single joint expert (Mr Jackson) who gave evidence about the position and reinstatement of the right of way. There were also a number of witnesses of fact, including the parties themselves (although Mrs Salliss did not provide a witness statement in the Greenfield case, and in the Simou case only Mr Salliss gave oral evidence at trial).

Procedural history

[12]On 9 September 2014 the solicitors then acting for Mr and Mrs Salliss, Browne Jacobson LLP, made a formal application in each action for the proceedings to be stayed until January 2015, for the pre-trial review listed to take place on 30 September 2014 to be adjourned, and for the trial (which was then listed to take place in the fortnight beginning on 10 November 2014) to be likewise adjourned. The evidence in support of the applications said that the adjournment was sought because Mr Salliss “is seriously ill and being treated for a cancerous bladder tumour”. He was due to begin a further cycle of treatment, which would continue beyond the scheduled trial date. His doctor had therefore recommended that the trial should be adjourned, so that Mr Salliss could finish his treatment which would be “invasive and exhausting”. A letter was attached from Dr Nicholas Grosvenor of the Fairfield Surgery in Burwash.

[13]Dr Grosvenor was presumably Mr Salliss’s general practitioner. In his letter, which was dated 1 September 2014, he said:

“Mr Salliss attended the surgery requesting a summary of his medical problems and treatment. He is a 72 year old man who is under the urologists at The Conquest Hospital where he is being treated for a bladder tumour which has required multiple out-patient appointments and chemotherapy. He is due to commence a further cycle of treatment for the bladder cancer from September and this is likely to overlap with the pending court date. Obviously his health is a priority, and I would appreciate it if you would consider deferring this court date until he can finish his treatment which is likely to be invasive and quite exhausting.”

[14]In the light of this evidence, it is unsurprising that the claimants both consented to the applications and orders were made on 24 September 2014 staying the proceedings until January 2015. The pre-trial reviews in each case were adjourned to the first available date thereafter, and directions were given for the trials to be re-listed on the first available date after 31 March 2015.

[15]It is now known, from reliable evidence which became available during the second week of the trial, that in August 2014 Mr Salliss had undergone a “check cystoscopy and biopsy” which revealed “no malignancy”. No mention of this was made in the evidence in support of the application by Mr Salliss’s solicitor, or in Dr Grosvenor’s letter. It seems reasonable to infer that Mr Salliss had failed to inform both his GP and his solicitors of this welcome recent development, and that he therefore permitted the application for an adjournment to be made on a materially misleading basis.

[16]On 16 December 2014, Mr and Mrs Salliss gave notice of acting in person in each claim.

[17]The rescheduled pre-trial reviews took place before Judge Coltart on 18 February 2015. Mr and Mrs Salliss were represented by counsel instructed on a direct access basis. Directions were given for the two cases to be tried together before Judge Coltart, with a revised time estimate of ten days, beginning on 20 April 2015. Further trial directions were also given, including for a site visit by the judge on Tuesday 21 April 2015 at 10.00 am. It is common ground that the possibility of Mr Salliss requiring further medical treatment was also mentioned at the hearing.

[18]On 30 March 2015, three weeks before the start of the trial, Mr Salliss wrote to the judge, marking his letter as “urgent” and for the attention of the Court Manager at Brighton County Court. In his letter, Mr Salliss referred to the hearing on 18 February, and the fact that his barrister had “announced the possibilities of attending hospital again for further cancer treatment, which has unfortunately come about on the actual date of the above trial”. Mr Salliss enclosed a letter from Eastbourne District General Hospital dated 17 March 2015, informing Mr Salliss that his admission to hospital had been arranged for Monday 20 April 2015. The admission letter did not specify the treatment which Mr Salliss was to receive, but it plainly involved an operation of some kind because he was told he would be “prepared for theatre” at midday, and that he would be in a different area “following [his] operation” when he would be informed of his “allocated ward”. In his letter to the judge, Mr Salliss asked if it would be possible to adjourn the trial for one week, because that would help him attend his appointment at the hospital. He added, however:

“If, it is not possible, then I will cancel the hospital appointment for a later date, as I do not wish these two trials to proceed without my attendance, as I am the main Defendant Witness on both these two cases.”

[19]Mr Salliss copied his letter to the solicitors for Mr Simou and Ms Greenfield. The former noted that Mr Salliss did not state the purpose of the hospital appointment, or how long the procedure would take. They suggested that the appointment be rearranged for a date outside the trial period. The latter said that as this was the second occasion on which Mr Salliss had sought an adjournment, they would not consent to it and he must make his application to the court.

[20]On 10 April 2015 a further hearing took place before the judge, on an application by Mr and Mrs Salliss in the Greenfield case to admit the report of a further expert, Mr Maynard. On this occasion Mr and Mrs Salliss were represented by different counsel, Mr Godfrey, again instructed on a direct access basis. The application was unsuccessful. We do not have a transcript of the hearing, but it is common ground that it was made clear to the judge that Mr Salliss was then well enough to attend the trial, and that it would be better for him to get it out of the way. It was also agreed that Mr Salliss would attend his medical appointment at the hospital on 20 April, and would therefore miss the first day of the trial when the claimants would make their opening submissions. It will be recalled that the second day of the trial was already earmarked for a site visit. It was accordingly envisaged that Mr Salliss would be well enough to attend court when the hearing resumed on Wednesday, 22 April. No application for an adjournment was therefore pursued.

[21]It seems that over the weekend of 11 and 12 April Mr Salliss experienced some alarming symptoms, including passing blood in his urine, and that he went to hospital on Monday 13 April. The details are obscure, because there is no proper medical evidence before the court, and what I have said is largely based on a letter which Mrs Salliss sent to the court on 13 April and a short letter of 14 April from Dr Thomas of Fairfield Surgery which Mrs Salliss obtained and sent to the court on that date.

[22]Her first communication with the court on 13 April was an email to the listing office which she asked to be placed before the judge. It merely said “I act as Litigant in person, and my husband is unwell for the above hearing. Thank you, kind regards, Mrs Hazel Salliss”. In her letter of the same date, which was addressed to the court office at Brighton County Court and copied to the solicitors for the claimants, Mrs Salliss gave a little more information:

“It is unfortunately, my husband has suffered a further scare, and I had to telephone his Surgeon late Saturday afternoon. My husband has been too optimistic, and he should not attend the trial as my husband is not in a fit and stable [mental] condition, and with the fright of passing blood, my husband is to be remitted to hospital today @ 11:30 am. I therefore cancel both trials that are to [commence] on the 20th April as this has possibly caused him further anxiety, and could be a contributing factor to his failing health when I spoke to his Surgeon. Our Barrister defending both these cases Mr Lauren Godfrey pre-warned me that he could not perform without his [presence] for it is he who is the prime Witness on both these cases.”

Mrs Salliss then made certain complaints about delivery of the trial bundle, which it is acknowledged lacked substance, before saying:

“It is for the above reasons that both these two trials are to be set for a fresh date in order my husband is well enough to defend himself.”

She concluded by raising two further matters to which I need not refer. Mr Collings accepted in his skeleton argument that the letter was written “in regrettable terms”, but he submits that it made the serious point of Mr Salliss’s admission to hospital and of his unfitness to attend trial on the following Monday.

[23]On 14 April Mrs Salliss telephoned the court office after speaking to Dr Thomas at 8.20 am and asking him to provide a letter for the court. In his letter, addressed “to whom it may concern”, Dr Thomas said:

“Mr Salliss has recently had a recurrence of his urological symptoms having been diagnosed and cleared of carcinoma in situ of the Bladder in July 2014. He has therefore been seen again by the Surgeons who, I understand, have written a supportive letter to say that he now needs to have further operative intervention next week. I understand he is due to appear as a witness in court and a letter is required to apprise you of his current condition. I would suggest that he will not be in any condition to be present in court while all of this is being dealt with.”

[24]In an email timed 3.06 pm, Mrs Salliss forwarded this letter to the court office and asked that it be passed to the judge. She also said:

“To assist you, I have sent the hospital letter as well which I know is also on record with the court.”

This must have been a reference to the appointment letter dated 17 March 2015, which Mr Salliss had sent to the court with his letter of 30 March.

[25]There is no indication that Dr Thomas had examined or spoken to Mr Salliss before writing his letter of 14 April, and it seems likely that he was dependent for his information on what Mrs Salliss told him during their telephone conversation. The “supportive letter” from “the Surgeons” appears to be a garbled reference to the appointment letter of 17 March: there is no evidence of any other letter from the hospital at this time. This inference is supported by a further email which Mrs Salliss sent to the court at 3.54 pm on 14 April, headed in the subject box “Very Urgent – Adjournment 20.4.2015”. Mrs Salliss said:

“Dear Jane, … I am writing on behalf of my husband Mr Michael Salliss who is defending the above two cases as litigant in person. We spoke earlier this morning after I spoke to his doctor @ 8.20 am. I have a letter from Dr Thomas which is self-explanatory together with his hospital letter that I do know is on record with the court.”

The “hospital letter” can only be the appointment letter of 17 March, as no other letter from the hospital was already “on record with the court”. Mrs Salliss concluded:

“Please would you kindly send this information to his Honourable Judge Coltart for his attention. Thank you again for [your] kindness and support this morning on the telephone, albeit I was very tearful!”

[26]At 4.01 pm on 14 April Jane Vallins of the Listing Section at Brighton County Court replied to Mrs Salliss, saying:

“I confirm receipt of your email and attachments which I will duly forward on to His Honour Judge Coltart to make a decision and we will notify you of the outcome.”

To similar effect, Ms Vallins sent a further email to Mrs Salliss at 8.45 the next morning:

“I have forwarded both of your emails onto His Honour Judge Coltart and we will advise you of any directions from him as soon as we are notified of them.”

[27]On the same day, Heringtons (on behalf of Ms Greenfield) wrote to Mrs Salliss. They pointed out the confused nature of the medical evidence, such as it was, and drew attention to the apparent discrepancy between Dr Grosvenor’s letter of 1 September 2014 and Dr Thomas’ statement that Mr Salliss had been cleared of cancer in July 2014. They asked if Mr Salliss would give his consent to Mr Fisher of Heringtons contacting his GP to discuss his present medical condition. There was never any response to this request. Heringtons then said:

“We think it only fair to indicate that, whatever Mr Salliss’ state of health we consider it highly unlikely our client will consent to an adjournment of this long-awaited trial.”

[28]This correspondence prompted Mrs Salliss to send a further letter to the court office at 4.20 pm on 15 April, marked “Very Urgent”. The letter suggested, among other things, that the case ought to be transferred to London, because of alleged tampering with the evidence, and that their counsel, Mr Godfrey, was in a position of conflict of interest because Heringtons instructed other members of his chambers. She also said:

“In the view of my current situation with my husband being unwell, I am seeking further advice from an alternative Barrister based in London for this reason.”

Mr Collings again accepted that this letter was written “in regrettable terms”, and he accepted that there was no substance to any of the concerns raised by Mrs Salliss. Later the same day, Heringtons wrote to the court opposing the requested adjournment. In temperate terms, they answered all of Mrs Salliss’s complaints.

[29]On Friday 17 April Mr Simou’s solicitors, Pritchard Joyce & Hinds, also wrote to Mrs Salliss saying that any adjournment would be opposed, and they would be asking the judge to proceed with the trial on Monday 20 April.

[30]The position which had thus been reached, when the trial duly began on the morning of 20 April, was that:(a) Mr Salliss was not present, because he had his longstanding appointment for an operation of an unspecified kind at the hospital; but

(b) it had been agreed at the hearing on 10 April, when he and his wife were represented by counsel, that the first day of the trial would proceed in his absence; and

(c) Mrs Salliss had meanwhile made an informal application to the court for an adjournment of the trial, based on an alleged worsening of her husband’s symptoms over the weekend of 11 and 12 April, which was unsupported by any medical evidence apart from Dr Thomas’s letter and was opposed by both claimants.

[31]Despite the informal nature of this application, the court office had not required it to be made by an application notice under CPR Part 23 supported by written evidence, but had instead informed Mrs Salliss on 14 and 15 April that her emails would be placed before the judge for him to make a decision or give directions of which she would be notified. Unfortunately, there is no indication that the judge was able to deal with the matter before the start of the trial, nor is there any record that a decision was made or any directions given. In saying this, I do not mean to criticise the judge, because there is no direct evidence that Mrs Salliss’s emails were ever brought to his attention, even if they were in some way forwarded to him. He was no doubt extremely busy with the usual heavy caseload of a circuit judge, and even if the matter had come to his attention, he would have been justified in deferring any decision on the application until the start of the trial. From the perspective of Mr and Mrs Salliss, however, as litigants in person, they had received an apparently unqualified assurance from the court office that the judge would make a decision or give directions on the matter of which they would be notified.

[32]In the circumstances, I consider that fairness to Mr and Mrs Salliss requires this court to proceed on the assumption that, at the start of the trial on 20 April, there was an outstanding application for an adjournment by the defendants upon which a ruling from the judge was needed before the trial could proceed. Regrettably, as I shall explain, that is not what happened.

The trial

[33]At the beginning of the hearing on 20 April, counsel for Ms Greenfield (Mr Baldock) began by introducing himself, counsel for Mr Simou (Mr Joseph), and Mrs Salliss. The following exchanges then took place:

“MR BALDOCK: … Your Honour knows from the hearing we had recently, Mr Salliss is not attending today for medical reasons, and that has been provided for. Mr and Mrs Salliss are no longer represented. JUDGE COLTART: Mrs Salliss, I was told last time that you were going to continue with the service of Mr Godfrey. You have decided against that, have you? MRS SALLISS: Your Honour, I’m sorry that I don’t have a barrister here today and at such short notice. JUDGE COLTART: It is not short notice. MRS SALLISS: Well, it is very short notice, because I only got the bundles on Thursday and my husband and I were going to adjourn it completely because of his illness. JUDGE COLTART: You say you were going to adjourn it, I am afraid it is for the court - MRS SALLISS: Well, we wanted to because … JUDGE COLTART: - to decide whether to adjourn it or not. MRS SALLISS: Yes, I realise that, your Honour.”

MRS SALLISS: Well, we wanted to because … MRS SALLISS: Yes, I realise that, your Honour.”

MRS SALLISS: Well, we wanted to because …

[34]Mrs Salliss then changed the subject, and raised another (irrelevant) matter which she said Mr Salliss would like to bring to the judge’s attention relating to police records. There was some discussion of this, and then of the site visit which had been arranged for the following day. Mrs Salliss said she was anxious for the judge to attend it, both to see what the problem was, and “because my husband may not be out of hospital tomorrow due to various things that have happened this week”. She asked if it would be possible for her surveyor, Mr Maynard, to attend the site visit in case her husband was unable to be there himself. The judge refused this request, because on 10 April he had already refused Mr and Mrs Salliss permission to adduce expert evidence from Mr Maynard as well as Mr Hillier. It was then agreed that the visit would take place at 1 pm on the Tuesday, rather than at 10 am as originally directed.

[35]In the course of her exchanges with the judge about the site visit, and her wish for Mr Maynard to be present, Mrs Salliss again raised the question of her husband’s health:

“MRS SALLISS: Excuse me, your Honour, if my husband can’t be here tomorrow, as he’s sick – JUDGE COLTART: Yes. MRS SALLISS: - in hospital – so he can’t be present to help, as he is – JUDGE COLTART: He is in hospital today, is he? MRS SALLISS: Well, yes, he went in this morning. JUDGE COLTART: Went in this morning, and this was for – MRS SALLISS: … Yes, he’s having his operation. JUDGE COLTART: It was for? An exploratory operation, was it? I cannot remember what the precise wording was in the hospital letter [i.e. the appointment letter of 17 March 2015] but you will be able to help – MRS SALLISS: It’s always been exploratory operations and he’s always had chemo. And that is the problem. Now, sometimes he’s been in one day and sometimes been in three days, and as his doctor said to me, “You cannot expect a man with anaesthetic at 73 years of age to be doing this” and so – JUDGE COLTART: So what are you asking for? MRS SALLISS: So I want somebody to act for my husband if he can’t be there.”

[36]It is clear from the exchanges which I have quoted that everybody, including the judge, was aware in general terms of the reason for Mr Salliss’s absence, namely that he was undergoing some form of exploratory operation at the hospital pursuant to the appointment which had been made on 17 March. It is also clear that Mrs Salliss did not explicitly make, or renew, any application for an adjournment, and she appeared to accept that it was for the court, not herself and her husband, to decide whether any such application should be granted. Furthermore, the judge evidently did not think that there was an outstanding application for an adjournment upon which he needed to rule, and neither of the claimants’ counsel suggested to him that there was. Instead, the whole question seems to have gone by default. The application to adjourn which Mrs Salliss had made in her emails to the court was simply not addressed, and the trial proceeded with opening submissions from the claimants. In effect, therefore, on the assumption that there was an outstanding application to adjourn the trial, the judge implicitly refused it.

[37]The site visit duly took place the next day. It was attended by the claimants and their counsel, by the two surveyors in the Simou case, and by Mr and Mrs Salliss. Mr Salliss had returned from hospital after his treatment the previous day. There is no suggestion that his treatment in any way hampered his participation in the site visit. He was also well enough to attend the trial for the rest of the first week, when he conducted the defence on behalf of himself and his wife. This included a thorough cross-examination of Ms Greenfield on 22 April, and cross-examination of all her supporting witnesses. Again, there is no suggestion that Mr Salliss was hampered or at any obvious disadvantage in performing these tasks.

[38]On Monday 27 April, Mr Salliss went into the witness box to give his own evidence in both cases. His evidence had not been concluded by the end of the day. During the night, he suffered pain and bleeding in his urine. Entirely understandably, he felt that he needed to return at once to the hospital. He raised the matter with

the judge at the beginning of the next day’s hearing, and the judge readily agreed, saying:

“I think that the best thing is for you to go straight to Eastbourne Hospital, obviously with your wife, I think.”

The judge then added:

“But, obviously, we would like to know how things go there and when it is likely you will be fit to resume your evidence.”

[39]After some further discussion, it was agreed that the trial could not fairly proceed in the absence of both Mr and Mrs Salliss, since they were unrepresented. Mr Baldock then raised the point that, according to the latest letter from Dr Thomas, Mr Salliss was not in fact suffering from bladder cancer, or at least no longer was even if he had been previously. The judge then asked Mr Salliss whether this was the case. Mr Salliss replied by giving a brief description of the operation which he had undergone on 20 April, saying that “some spots on the bladder” had been found which “were cancerous as far as [he was] aware”, and he was also suffering “bleeding from the neck of the inlet with ruptures in the blood vessels”. Mr Salliss thought that the symptoms which had appeared again overnight were a recurrence of the same problem.

[40]Following this discussion, it was clear that the day’s hearing would have to be adjourned to await further developments. The judge said it would be in everybody’s interest for the case to conclude, if possible, during that week, to which Mr Salliss expressly agreed. The judge then said that the hearing would resume at 10.30 am the next day. He told Mrs Salliss to ring from the hospital with a progress report just before 1 pm, and if the position was then still uncertain, to ring again later in the day. The judge continued:

“Either he will be fit enough to resume tomorrow, in which case there should be no further problem or, alternatively, if he is not, you must give consideration to going on without him. Everybody has agreed that you can pick up the reins when it comes to giving evidence. You will be giving evidence, in any event, on the Simou case. I would be perfectly content to hear your submissions at the end of both cases.”

[41]Shortly before 1 pm, the court received a telephone call from a friend who had been sitting in court with Mr and Mrs Salliss, Mrs O’Connor, saying that they were still at the Eastbourne District General Hospital waiting to be seen. The judge briefly discussed the position in open court with the claimants’ counsel, and ended by saying:

“Right. We will adjourn until 10.30 tomorrow morning. I hope that I made the position clear enough to the Sallisses, either he must be here or, in effect, they must make arrangements to go on without him.”

[42]To understand what happened during the rest of Tuesday 28 April, after Mr and Mrs Salliss had left court at around 11 am, it is probably best to begin with the discharge letter which was given to Mr Salliss when he left the hospital that evening at about 6.30 pm. The letter said that he had been admitted at 4 pm and discharged at 6 pm. The diagnosis was of a urinary tract infection, with no primary care follow up action required from his GP, and follow up secondary care as an outpatient. The “admission summary” prepared by the urology registrar at the hospital, Mr I Rudd, said:

“This was [an] emergency presentation with pain and haematuria. 1 week after surgery (cystoscopy and diathermy of prominent bleeding vessel at bladder neck). Patient was in court today for a legal hearing and became unwell. I would suggest rest and recuperation for a minimum of 14 days from now. If necessary the court hearing should be delayed on medical grounds.”

[43]Under the heading “Co morbidities”, the discharge letter then recorded that Mr Salliss had undergone a “check cystoscopy and biopsy” in August 2014, which revealed “no malignancy”, and a further “check cystoscopy” in April 2015, which revealed “no recurrence”. This was evidently a reference to the operation which Mr Salliss had undergone on 20 April. It clearly confirmed that Mr Salliss had been free from any malignancy since at least August 2014. The letter also recorded that other tests performed on Mr Salliss had produced normal results, and that no changes were made to his usual medication during his admission.

[44]I should add that a further document from the Emergency Unit at the hospital recorded that Mr Salliss had attended on 28 April at 12.29 pm and been discharged at 6.30 pm. I would accept that these timings are likely to be more accurate than those in the discharge letter.

[45]Meanwhile, Mrs Salliss sought the assistance of counsel on a direct access basis for the purpose of applying for an adjournment of the trial. The barrister whom she approached was Mr Timothy Becker of Thomas Bingham Chambers in London. He had apparently dealt with Mr and Mrs Salliss briefly on other matters in the past. Later that day, he wrote to the judge (who was in fact sitting in Lewes, although the trial was technically proceeding in the County Court at Brighton). In his letter, Mr Becker said that during the morning his practice assistant had received a number of telephone calls from Mrs Salliss, during which “she was extremely emotional”. She told him “that her file of papers had been stolen or lost and that Mr Salliss was in fact seriously ill suffering from cancer”. She further said that “she could not cope with the case, did not understand the procedure or issues and was simply not managing to defend herself without representation”. Mr Becker added that he was aware “that Mrs Salliss was represented under her insurance until that reached its limit”. I note that this would appear to be the true reason why Mr and Mrs Salliss had parted company with Mr Godfrey.

[46]Mr Becker then said he was instructed by Mrs Salliss to apply for an adjournment of the trial “either until Mr Salliss has recovered sufficiently to attend trial or for the first available date after 14 days”. Mr Becker then set out the grounds on which he was applying for an adjournment, repeating that Mr Salliss had been “suffering from cancer” and was “very seriously ill”. Mr Becker confirmed that his assistant had only spoken with Mrs Salliss, and accordingly he (Mr Becker) only had instructions from her.

[47]Mr Salliss did not attend court the following morning, but Mrs Salliss did. The judge had received Mr Becker’s letter, and Mrs Salliss had also provided him with the discharge letter from the hospital. The judge picked up the point in Mr Becker’s letter about the Sallisses’ lack of representation, saying it appeared “to be entirely your own affair, because … you were legally represented until your legal insurance ran out of funds”. He suggested that it would have been sensible for them then to pay for legal representation themselves, in view of Mr Salliss’s illness.

[48]After a short adjournment to enable the claimants and their advisers to consider this new material, the judge heard submissions from Mr Baldock and then from Mr Joseph.

[49]Mr Baldock submitted that the court was being presented with a “fait accompli” in an attempt to prevent the trial from proceeding. He said the discharge letter established that Mr Salliss no longer had cancer. He then said that after the previous morning’s hearing, despite the urgency being expressed about Mr Salliss’s medical condition, “the papers were packed up by Mr and Mrs Salliss and loaded into their car”. A little later, Mr Baldock corrected this, and said that the papers had been loaded into Mr Hillier’s car, commenting: “So Mr Hillier has the papers. No doubt, on instructions, he was told to remove them”.

[50]Mr Baldock then stated that Ms Greenfield had given a lift to Mr Simou to pick up his car in Pevensey, and at 11.40 am they had by chance passed the Sallisses’ car parked in a lay-by. Their suspicions were aroused, so they parked a little further on, and it was not until 12.10 pm that the Sallisses’ car then passed them on the way to the hospital. It therefore appeared that Mr and Mrs Salliss had deliberately delayed their journey to the hospital, and that far from their papers being lost or stolen, as Mrs Salliss had told Mr Becker, the papers had in fact been placed in the car of their own expert witness, Mr Hillier. Mr Baldock concluded his submissions by saying:

“I am afraid that the gloves are off and this is a deliberate attempt to sabotage this trial going ahead. I would submit that in my case … the evidence, such as it is on the issue that remains, which is effectively has there been substantial interference with this right of way, is overwhelming and this is an attempt to resist the obvious.”

[51]Mr Joseph then made submissions on behalf of Mr Simou. He confirmed that both his client and Ms Greenfield had seen the papers being put into Mr Hillier’s car. Furthermore, Mr Hillier was not present at the resumed hearing, even though his attendance had been directed by the judge in clear terms on the previous day. He too submitted that Mr and Mrs Salliss were guilty of a deliberate attempt to sabotage the trial.

[52]The judge then turned to Mrs Salliss, saying that she now had the opportunity to deal with the points that had been raised. He invited her to begin with her husband’s medical condition, and asked if there was any other evidence that he was suffering from cancer. Mrs Salliss then asked if her friend, Mrs O’Connor, could speak on her behalf, to which the judge agreed. Mrs O’Connor said she had been led to believe by Mr and Mrs Salliss that Mr Salliss was suffering from cancer. She then sought to explain why the papers had been placed in Mr Hillier’s car, and why there had been a delay in reaching the hospital. The papers had been placed in Mr Hillier’s car because Mr Salliss did not have the keys to his own car, which had been left in his wife’s bag. Mr Hillier then took the papers to the car park to offload them, presumably into Mr Salliss’s car. As for the journey to the hospital:

“We went to go to Eastbourne Hospital and we ran out of petrol. We parked in a lay-by. There was a white van there with coffees and teas and Hazel and I had a coffee while Michael had a lift from a passer-by to a petrol station and came back and filled the car up with a couple of litres or whatever from a can. Then we went to the hospital and parked.”

[53]The judge then questioned Mrs Salliss about her husband’s state of health, and about the papers that she had apparently told Mr Becker’s assistant had been lost or stolen. After some prevarication, Mrs Salliss admitted that Mr Hillier had come and picked up all of the papers that had been taken away from court on the previous day. She was unable to explain why Mr Hillier was not present at court, despite the direction which the judge had made, in his presence, requiring him to attend at 10.30. Having ascertained that Mr Salliss was at home, the judge then told Mrs Salliss to inform him that the case would be restarting at 2 pm, and if he was not there, Mrs Salliss would have to carry on in his absence. Mrs Salliss then said: “I cannot, your Honour”, to which the judge replied: “Well, you will just have to, I am afraid”.

The judge then gave his ruling, as follows:

“I am not having this trial delayed any longer. I want a full transcript of what has transpired this morning to be prepared, in any event, so that everyone knows what has been going on, but it is my view that there is not sufficient evidence that you have produced to justify a lengthy adjournment in this case. It seems clear on the medical evidence that your husband is not suffering from cancer. He may be fearful of some recurrence of it, but he is not suffering from it at the moment and that was checked as recently as two weeks ago. In those circumstances, I see no reason why this case should not continue. It is your own choice that you are not represented. You were represented before me earlier in the month and now I hear why you did not continue with that representation. Mr Godfrey, who was there, was clearly available because he anticipated being instructed in the trial. So it seems to me that the fact that you are in person at the moment is entirely your own choice.”

[55]Mrs O’Connor then sought to excuse the absence of Mr Hillier by saying that she had been asked by Mr and Mrs Salliss to text him just before they left the hospital, to say that there would not be time for his evidence to be heard on the next day, so they told him not to come thinking that the judge “would probably want him on another day”. The judge then said it was not for her to make those decisions. Mrs O’Connor protested that she was merely doing as she had been asked, and it was not Mr Hillier’s fault that he was absent. The judge then said:

“It may not be Mr Hillier’s fault. It sounds as if it was not, but that is perhaps another reason why I am not prepared to grant any adjournments in this case, to have my own instructions overruled by the parties is not appropriate. I said to Mr Hillier that he should be here this morning, and that was the order that I made. If the parties choose to countermand that, they only have themselves to blame, I am afraid. Two o’clock we will resume, come what may.”

Two o’clock we will resume, come what may.”

[56]At 2 o’clock, Mr Salliss was in court, and Mr Joseph was ready to resume his cross-examination of him. Before he was recalled, Mrs Salliss asked the judge to give his reasons for refusing to adjourn the case, and asked for permission to appeal the refusal. The judge said:

“I am not going to grant you permission to appeal now because that would have the effect of aborting the trial, but it is a ground that you may wish to pursue at the conclusion of the trial.”

Mrs Salliss then asked him to fill out a form refusing permission to appeal, to which

the judge replied:

“Yes, I will do that in due course, but it will be part of my judgment, in any event, so you need not worry about the form.”

[57]Mr Salliss was then recalled. Before his cross-examination continued, he said to the judge:

“I would say before I proceed, I did arrive at the hospital yesterday at around about 12. We had a lot of trouble getting there. I was seen at 4 o’clock by the doctor and I was there until very late in the evening having tests and it is confirmed that I do have a severe bladder infection pursuant to the operation of last week, where they repaired blood vessels to the neck of the bladder.”

This appears to have been a reasonably accurate summary of Mr Salliss’s medical condition as it was recorded in the discharge letter.

[58]The trial then proceeded to its conclusion at the end of the week, when as I have already said the judge delivered an extempore judgment dealing with the two cases in turn and finding in favour of the claimants. Despite the assurance which he had given to Mrs Salliss, he did not return to the reasons why he had refused an adjournment in his judgment. He may well have thought that he had already given a sufficient statement of his reasons in the passages which I have quoted from the transcript. At a later stage, the judge filled in a form giving his reasons for refusing permission to appeal, but again this said nothing about the refusal of an adjournment. The judge merely said “These were factual disputes and I preferred the claimant’s version in each case”.

Relevant principles

[59]The decision whether or not to adjourn a trial is one of case management. As such, it is common ground that it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree”: see Global Torch Ltd v Apex Global Management Ltd (No.2)

[2014] UKSC 64

[2014] 1 WLR 4495

, at 4500 per Lord Neuberger, approving the test stated by Lewison LJ in Broughton v Kop Football (Cayman) Ltd

[2012] EWCA Civ 1743

at [51].

[60]Mr Collings also rightly accepted that, even if there were a serious procedural irregularity, this court would only allow the appeal and order a retrial if satisfied that the decision of the judge was “unjust”: see CPR rule 52.21(3)(b) (previously rule 52.11(3)(b)) and Hayes v Transco Plc

[2003] EWCA Civ 1261

at [14] per Clarke LJ. Whether or not the decision is unjust “will depend on all the circumstances of the case”: ibid.

[61]The power to adjourn a hearing is expressly included in the list of case management powers contained in CPR rule 3.1(2), at sub-paragraph (b). The power must of course be exercised in accordance with the overriding objective of enabling the court to deal with cases justly and at proportionate cost: rule 1.1(1). This includes ensuring, so far as is practicable, that the parties are on an equal footing: ibid, paragraph (2)(a).

[62]Mr Collings also drew our attention to rule 3.1A, headed “Case management – unrepresented parties”, which came into force on 1 October 2015, some six months after the trial in the present case, but was intended to make explicit what had long been the best practice of most courts. So far as relevant, rule 3.1A provides:

“(1) This rule applies in any proceedings where at least one party is unrepresented. (2) When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented. … (4) The court must adopt such procedure at any hearing at it considers appropriate to further the overriding objective.”

[63]With regard to medical evidence, the parties were again in agreement that the relevant principles are those stated by Norris J in Levi v Ellis-Carr

[2012] EWHC 63 (Ch)

at [36], which were endorsed by this court in Forresters Ketley v Brent

[2012] EWCA Civ 324

at [26] by Lewison LJ, with whom Longmore LJ agreed. Norris J said of the evidence in the case before him, in a passage which bears repeating:

“In my judgment it 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 recent prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. 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).”

[64]With those principles in mind, I now turn to consider the two occasions when it is said the judge was wrong to refuse an adjournment. (1). The first refusal of an adjournment

[65]The nub of the appellants’ case in relation to the first application for an adjournment is that it was never properly considered or ruled upon by the judge. Mr Collings accepted that the application was made in a chaotic manner, and that Mrs Salliss had made matters worse by the inappropriate tone and content of parts of her letters to the judge on 13 and 15 April. Nevertheless, she had applied, albeit informally, for an adjournment on her husband’s behalf, and she had provided the court with at least some medical evidence in the form of Dr Thomas’s letter of 14 April, which needed to be read together with the earlier hospital appointment letter of 17 March 2015 which Mr Salliss had sent to the court on 30 March. The court office assured Mrs Salliss on 14 and 15 April that the material submitted by her would be forwarded to the judge for his decision or directions, and that the court would notify her of the outcome. This never happened, but the application was never abandoned or withdrawn.

[66]In my judgment there is considerable force in these submissions. The court could reasonably have insisted that any application for an adjournment should be made by application notice supported by proper evidence, but it did not do so, and Mrs Salliss was given the clear impression that her application had been accepted and would be ruled upon by the judge. Furthermore, by the start of the trial on 20 April, even if not before, the judge should have appreciated that this was the position, and that the question needed to be addressed at the start of the trial. Counsel for the two represented parties must in my view share some of the responsibility for the failure to ensure that this happened, although Mrs Salliss again made matters worse for herself by not stating explicitly that she still required a ruling on her application, and by moving straight to different topics once the judge had told her that the question of an adjournment was one for the court, not the parties, to decide. At the very least, I think that he should then have enquired of Mrs Salliss whether she still wished to pursue the application, and (if she did) invited further submissions from the parties before reaching a decision. As it is, the issue went by default and the trial proceeded without it being resolved.

[67]With the benefit of hindsight, it is easy to understand how this happened, and I have considerable sympathy with the judge who was faced with a difficult situation which, to a considerable extent, Mr and Mrs Salliss probably appeared to have brought upon themselves. Nevertheless, I cannot escape the conclusion that there was a procedural irregularity in the court’s failure to address and deal with the adjournment application. The question remains, however, whether this irregularity caused any injustice to the appellants. In my opinion, it clearly did not. Since the hearing on 10 April, it had been understood that Mr Salliss would miss the first day of the trial because he would be attending his appointment at the hospital. This had been agreed at a time when he was represented by counsel, and no application for an adjournment was made on that occasion. Even if his condition had then deteriorated during the following week – and there is no credible evidence that it had – there was still no good reason why the first two days of the trial should not proceed as agreed, with opening submissions by the claimants (in the absence of Mr Salliss) on day one, followed by the site visit on day two. Everybody, including Mr Salliss, recognised that it was most desirable for the trial to go ahead, dealing as it did with events dating back some ten years, and with unfortunate disputes between neighbours which would continue to fester while they remained unresolved.

[68]In these circumstances, I cannot see any realistic prospect that the judge would have agreed to adjourn the whole trial if the adjournment application had been dealt with, either before or on the first day of the trial. The most probable scenario, in my judgment, is that the judge would have postponed making any decision on the application until day three, directing Mrs Salliss in the meantime to obtain proper medical evidence in support which complied with the requirements stated by Norris J in Levi v Ellis-Carr. Had the judge given directions to that effect, it would then have been apparent by the Wednesday (day three) that Mr Salliss had recovered sufficiently well from his biopsy on the Monday to play a full part in the trial, as he then indeed proceeded to do for the rest of that week. The application for an adjournment, if still pursued, would therefore have been refused.

[69]I therefore remain wholly unpersuaded that Mr and Mrs Salliss suffered any injustice as a result of the judge’s failure to deal with the first application for an adjournment. This conclusion is reinforced by, but not dependent upon, the apparent acquiescence of Mrs Salliss in the procedure adopted by the judge at the start of the trial, and by her failure to press any application for an adjournment in her oral submissions to him. (2). The second refusal of an adjournment

[70]When Mrs Salliss made her second application for an adjournment on the morning of 29 April, the trial had already been running for over a week. The evidence in the Greenfield case was complete, and Mr Salliss was in the middle of his oral evidence relating to the Simou case. It was clearly desirable that the case should if possible be finished within the two weeks allotted for it. Nevertheless, fairness required that an adjournment should be granted if Mr Salliss was really unable to continue with his evidence, or to conduct the remainder of the trial on behalf of himself and his wife in a way that enabled him to do justice to their case. Furthermore, the judge was clearly alive to the need for procedural fairness, as he had demonstrated by his ready agreement to adjourn the case on the previous day for Mr Salliss to return to hospital following the alarming symptoms which he had experienced during the night. On any view, the judge dealt with that part of the case impeccably, and Mr Collings did not suggest otherwise.

[71]The position was, however, very different when Mrs Salliss made her application for an adjournment on the morning of the 29th. The judge had before him the discharge letter from the hospital, which demonstrated that Mr Salliss was not currently suffering from cancer, and that no immediate action was required to treat his urinary tract infection. He had been able to leave the hospital the previous evening, and any secondary care follow up was to be as an outpatient. On the other hand, Mr Rudd suggested rest and recuperation for a minimum of 14 days, and expressed the view that the court hearing should if necessary be delayed on medical grounds. The judge was not obliged to accede to this recommendation, but plainly he needed to give it proper consideration.

[72]The position was further complicated by the fact that there was strong evidence to suggest that Mr and Mrs Salliss had deliberately tried to engineer an adjournment of the trial by delaying their journey to the hospital, by pretending that their papers had either been stolen or mislaid, and (in the case of Mrs Salliss) by enlisting the services of Mr Becker to apply to the judge for an adjournment on the basis of information supplied to him which was demonstrably untrue. The judge heard submissions to this effect from counsel for both claimants, and then explored the evidence relating to Mr Salliss’s medical condition and the alleged loss of the papers with Mrs Salliss. He also heard the frankly implausible account given by Mrs O’Connor of the events which led to the papers being placed in Mr Hillier’s car, and of the mishap which allegedly occurred on the journey to the hospital. He also elicited an express admission from Mrs Salliss that the papers had indeed been placed in Mr Hillier’s car, from which it followed that her claim that they had been lost or stolen was untrue, and deliberately so. In colloquial terms, the judge had every reason to conclude that the court was being messed around by Mr and Mrs Salliss, probably because they perceived that the case was going badly for them.

[73]In this situation, the judge had a balancing exercise to perform. There were factors which told in favour of an adjournment, including the distressing symptoms which Mr Salliss had experienced on the Monday night and the recommendation of Mr Rudd. But there were also powerful factors which pointed the other way, including the fact that the oral evidence at the trial was mostly complete, the general desirability of finishing the trial within its allotted schedule, and the evidence suggesting that Mr and Mrs Salliss had deliberately tried to take advantage of his latest ill health to mislead the court and secure an adjournment by improper means. Provided that the judge took all these matters into consideration, he could not in my view be criticised for deciding, as he did, that the adjournment should be refused. Moreover, this conclusion gains support from the fact that Mr Salliss appeared in court at 2 pm on 29 April, after the judge had delivered his ultimatum, and was then able to complete his evidence and conduct the remaining stages of the trial.

[74]The only remaining question, therefore, is whether it can be said that the judge failed to give proper consideration to the matters which I have mentioned. Mr Collings submitted that the judge became fixated on the fact that Mr Salliss no longer had cancer, and that this clouded or otherwise vitiated his ability to assess the position in the round. I do not accept this criticism. The ruling which the judge gave was short, but he clearly intended it to be supplemented by the transcript of the morning’s proceedings which recorded the submissions addressed to him and the evidence that Mr and Mrs Salliss had tried to mislead the court. If his manner towards Mrs Salliss was at times rather brusque, I would comment that he had good reason to feel provoked, and he was never guilty of discourtesy or intemperate language. Furthermore, the judge’s ruling, short and informal though it was, identified at least the following matters which supported his conclusion:(a) his view that there was insufficient evidence produced by Mrs Salliss to justify a lengthy adjournment, having regard to the transcript of the morning’s proccedings;

(b) the fact that Mr Salliss was not at present suffering from cancer, whatever the position may have been in the past and however fearful he might be of some recurrence of it;

(d) the fact that Mr and Mrs Salliss had taken it upon themselves to countermand his direction that Mr Hillier should attend the resumed hearing on 29 April.

[75]It is perhaps regrettable that the judge did not return to the question and deal with it more fully in his judgment at the end of the trial, but taking everything into account I feel quite unable to conclude that he was wrong to refuse the second adjournment. It was a matter which fell within the wide ambit of his discretion, and it cannot be said that he erred in principle or was otherwise plainly wrong to rule as he did.

[76]I therefore conclude that the appellants’ challenge to the refusal of the second request for an adjournment cannot succeed.

Conclusion

[77]For all these reasons, I was satisfied that the appeal had to be dismissed.

[78]I agree.

Sir Terence Etherton MR:

[79]I also agree.