The Three Mile Inn Ltd & Ors v Dale

This is an application for permission to appeal against the order of Mann J dated 20 June 2012 whereby he refused an application by Mr William Robertson for an adjournment of the trial of an application originally made by Mr Robertson and ten other applicants in July 2011 for an order removing the respondent, Mr Martin Daley, as liquidator of The New Northumbria Hotel Ltd. Mann J also directed that the evidence of Mr Robertson should be taken by video link and that all arrangements for that video link should be made by Mr Robertson's solicitors. The trial is listed for one day in a three-day window commencing yesterday, 26 June.

Although Mann J's order was made on 20 June, the application for permission to appeal was not filed until 26 June. In the light of its obvious urgency, I adjourned it to an oral hearing on notice to Mr Daley with the appeal to follow immediately thereafter in the event of permission being granted, and so it is that it comes before us today. Ms Angharad Start, who did not appear below, has appeared on behalf of Mr Robertson. Mr Banning, who did appear below, has appeared once again on behalf of Mr Daley. Having considered the papers and the parties' skeleton arguments, we formed the view that it was appropriate to give Mr Robertson permission to appeal and we so indicated at the outset of this hearing. We have therefore proceeded to hear the appeal.

The application for an adjournment was supported by a witness statement of Mr David Grant, a partner in the firm of Locke Lord UK LLP, Mr Robertson's solicitors, dated 18 June. He explains that on 24 February 2012, Registrar Barber directed that Mr Robertson and Mr Daley should attend at the trial for cross-examination. Unfortunately, on 5 June, Mr Robertson was forced to undergo a serious surgical procedure at the Princess Grace Hospital in Monaco, where he lives, to deal with haemorrhaging from his oesophagus. Mr Grant continues that Mr Robertson has now been advised by his doctor, Professor Patrick Hastier, that he should not leave Monaco until he has received further treatment, scheduled for 11 September 2012.

Mr Grant exhibits two certificates, signed by Professor Hastier, by way of confirmation. The first certificate, dated 18 May 2012, says that Mr Robertson:

In the second certificate, which is undated but which was clearly written after the procedure referred to in the first certificate, Professor Hastier says:

I think it is tolerably clear from this evidence that Mr Robertson is not fit to attend the trial in the window which is currently fixed.

Mr Grant says in his witness statement that, against this background, the parties discussed three possible ways forward. The first, favoured by Mr Daley, was that the cross-examination of Mr Robertson and Mr Daley should be dispensed with. This was not acceptable to Mr Robertson because Mr Daley's conduct is the focus of the application to remove him, and Mr Robertson considers it essential that Mr Daley be cross-examined about aspects of that conduct. The second, favoured by Mr Robertson, was that the trial should be adjourned until the first available date after 14 September 2012, by which time it is hoped that Mr Robertson will have recovered sufficiently to be able to attend. The third, apparently favoured by neither party until shortly before the hearing before the judge, was that Mr Robertson should not attend the trial but give his evidence by video link from Monaco. Mr Robertson considers this option impractical and prejudicial because of the stress it would impose on him and because he has a right to attend the trial.

The application came before the judge in the applications list. Unfortunately, a transcript of his judgment is not available, but it appears from a note of the hearing and the judgment made by Mr Abrahams, Mr Grant's assistant solicitor, that the skeleton argument prepared by counsel for the application on behalf of Mr Robertson was filed late, that the judge was not impressed by the medical evidence, and that the judge considered a video link was the answer. The whole hearing appears to have occupied a relatively short period of time and the judge did not have the benefit of the submissions that have been developed before us.

Ms Start submits that the judge fell into error in failing to appreciate the significance of the medical advice given to Mr Robertson, in failing to give any consideration to Mr Robertson's rights under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms to attend the trial, and in failing to have regard to the lack of any material prejudice to Mr Daley resulting from the requested adjournment of the trial to a date in September. Mr Banning counters that the judge made a trial management decision involving the exercise of his discretion and it is one with which this court should not interfere.

In assessing these submissions, I believe the starting point must be the advice given by Professor Hastier that Mr Robertson should remain in Monaco until after his further treatment in order to limit the risk of haemorrhage. Professor Hastier is the head of the Hepato-Gastroenterology Department at the Princess Grace Hospital and has certified that Mr Robertson has been in his care since 2009 for portal hypertension of hepatic origin. Mr Daley has not adduced any evidence in response and accordingly I see no reason to doubt Professor Hastier's opinion. Indeed, Mr Banning did not, in the course of his submissions, suggest that we should.

Second, I believe that a party does have a legitimate interest in attending the trial of proceedings to which he is a party and at which he will be a witness. This, it seems to me, is an aspect of a party's right under Article 6 of the Convention to a fair trial and moreover, it is a matter to which the court should have regard in dealing with cases justly and in accordance with the overriding objective which includes, so far as practicable, ensuring the parties are on an equal footing.

I recognise that in furthering the overriding objective the court may make use of appropriate technology and that for this purpose the CPR make express provision for the court to allow a witness to give evidence through a video link. Extensive guidance on the use of video links is now set forth in Annex 3 to the Practice Direction supplementing CPR Part 32 to which Ms Start has taken us during the course of her submissions. However, I believe that effective participation by a party in proceedings may require more than an opportunity to give oral evidence; his presence will, for example, allow him to follow the proceedings, note developments in the case as they occur, listen to the evidence given by, and on behalf of, the other party, and consult freely with his counsel and other legal advisors and give instructions to them. That is not to say that a direction which effectively requires a party to participate in proceedings by video link is necessarily contrary to the Convention or the overriding objective. However, it is, in my view, incumbent on the court to ensure that such a direction is made for a good reason and serves a legitimate aim. Indeed, paragraph 2 of Annex 3 specifically says that a judgment must be made in every case in which the use of a video link is being considered not only as to whether it will achieve an overall costs saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. Paragraph 2 continues that it needs to be recognised that the degree of control that the court can exercise over a witness at the remote site is, or may be, more limited than it can exercise over a witness physically before it. Moreover, paragraph 4 explains that it should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of video link facilities. It appears that enquiries have been made of a Monegasque lawyer as to whether Monaco law permits Monaco nationals or others within that jurisdiction to give evidence before a court in England or Wales by means of video link but no answer has been received.

In the present case, Ms Start submits, and I accept, that in refusing an adjournment in the face of the medical evidence, the judge impliedly excluded Mr Robertson from the courtroom save by video link unless he defied his doctor's advice. The order was in effect a direction that he must participate in the proceedings by video link. In my judgment, it was therefore incumbent on the judge to have regard to Mr Robertson's legitimate interests in attending the trial before making such an order, and that he did not do.

I would emphasise that the judge's failure is understandable because, as Ms Start frankly accepted, the application came before him in the busy applications list and the point was not developed before him. In the interests of justice we have, however, allowed it to be taken before us, and in my judgment the right of Mr Robertson to attend the trial was a significant matter which merited careful consideration in the exercise of discretion which the judge was required to undertake.

Third, I believe it is important to have regard to any prejudice that would result from the requested adjournment. Parties plainly have a right to a trial within a reasonable period of time, and due consideration must also be given to the effective management of the court's case load. However, Mr Daley has not filed any evidence suggesting that he is likely to suffer any prejudice over and above these matters for which he cannot be compensated by an order for costs. Indeed, the proceedings have been on foot for about one year and it seems he is getting on with the liquidation in the meantime.

Having regard to all these matters, I have formed the clear view that the balance of justice favours the grant of the adjournment requested. I appreciate the judge reached a contrary view but, in the light of his failure to consider Mr Robertson's legitimate interest in attending the trial of these proceedings to which he is a party, I am satisfied that this is one of those unusual cases in which it is permissible to overturn a case management decision. I would therefore allow this appeal.

I agree that this appeal must be allowed for the reasons which have been developed by Kitchin LJ. I would, however, wish to emphasise that we are concerned in this case with the position of someone who is party to the civil proceedings concerned and who is also a necessary witness in those proceedings. The facts of this case are particular. The determination in this case that there should be an adjournment by this court depends on specific factors which are relevant to this case. Other cases will have their specific facts and decisions will turn on those facts, but in the circumstances of this case the appeal must be allowed.