Morgan & Anor v Egan

It is important to start by acknowledging that a decision whether to adjourn a trial turns on the exercise of the judge’s case management discretion. In Teinaz v Wandsworth London Borough Council [2002] EWCA Civ 1040, [2002] ICR 1471, Arden LJ (with whom Buckley J agreed) said this:

“39.

The starting point is that the appellate tribunal does not read the original application with a view to forming, and if necessary substituting, its own judgment as to the way the discretion should be exercised. Nor does the appellate tribunal consider whether the exercise of discretion by the inferior tribunal is one of which it approves. The discretion remains that of the inferior tribunal. The appellate tribunal only intervenes in a limited number of situations. It sets aside the exercise of discretion by the inferior tribunal if the exercise of discretion is outside ‘the generous ambit within which a reasonable disagreement is possible’: see G v G (Minors: Custody Appeal) [1985] 1 WLR 647, 652e or, as this court put it in Carter v Credit Change Ltd [1979] ICR 908, 919g , the tribunal’s decision is perverse or such that no reasonable tribunal could have come to. Other situations in which the appellate tribunal can intervene in the exercise of discretion by the inferior tribunal are where the tribunal has made a mistake in law, acted in disregard of principle, misunderstood the facts or failed to exercise the discretion. The other situation in which the appellate tribunal can intervene, and which is the relevant one in this case, is where the inferior tribunal took into account some irrelevant consideration or, alternatively, left out of account some relevant consideration.

40.

Two points flow from this last point. First, it is for the appellate tribunal to determine what considerations are relevant to the question at issue. It does not defer to the inferior tribunal in the selection or identification of these considerations. Second, unless permission is given for fresh evidence to be adduced on appeal, the appellate tribunal makes this determination on the factual material before the inferior tribunal. If the appellate tribunal finds that an irrelevant consideration has been taken into account or that a relevant consideration has been left out of account, the appellate tribunal must conclude that the exercise of discretion by the inferior tribunal is invalidated, unless it can be satisfied that the consideration did not play any significant role in the exercise of the discretion and thus constituted a harmless error involving no prejudice to the appellant.

41.

It is to be noted that the standard of review as respects the exercise of discretion involves the grant of considerable deference to the inferior tribunal. In particular, where several factors going either way have to be balanced by the inferior tribunal, the appellate tribunal does not interfere with the balancing exercise performed by the inferior tribunal unless its conclusion was clearly wrong.”

The only qualification to this is that, in reviewing the trial judge’s exercise of discretion, the appellate court must be satisfied that the decision to refuse the adjournment was not “unfair” in terms of Article 6 ECHR. This does not, however, mean that in any given situation, only one outcome is fair: Terkuk v Beresovsky [2010] EWCA Civ 1345, [18]-[20] (Sedley LJ), cited with approval in Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101, at [32]-[35] (Gloster LJ).

In her witness statement of 13 November 2019, Mrs Morgan makes a number of complaints about failures on the part of Clifford Chance to include various documents in the trial bundle. Clifford Chance sent a letter on 26 February 2020 in which they explain that everything identified by the Morgans as relevant was either already in the trial bundle at the time or was subsequently added. Mr Isaac did not attempt to respond to that at the hearing before me. I therefore have no proper basis for criticising the conduct of Clifford Chance in the preparation of the trial bundle.

Even if there had been some error or failing in the preparation of the trial bundle, the judge who was due to hear the trial was well placed to decide to what extent (if any) such errors or failings had an impact on the fairness of the trial. As I have shown, she considered that the problems the Morgans had identified (if they were truly problems at all) were the sort of housekeeping matters she would expect to see resolved on the first day of the trial. It is quite impossible to impugn that decision as perverse or irrational or as falling outside the “generous ambit within which a reasonable disagreement is possible”. The decision was also not such as to make the trial “unfair” in terms of Article 6 ECHR.

The Morgans’ Ground 3 is therefore unarguable. I refuse permission to appeal on that ground.

It is necessary to say a little about the procedure by which the Morgans’ complaint of bias has come before this court. Ordinarily, a party who during proceedings wishes to advance an allegation of actual, presumed or apparent bias against the judge should, if there is a proper evidential basis for the allegation, apply to that judge to recuse himself or herself; and the judge should in general determine the application him or herself, rather than referring it to another judge. There are several reasons for this. First, the question whether actual or apparent bias is made out may depend on facts known only to the judge about whom the allegation has been made (such as whether the judge was aware of a connection alleged to give rise to presumed bias: see e.g. R (United Cabbies Group (London) Ltd v Westminster Magistrates’ Court [2019] EWHC 409 (Admin), [45]-[46] (Lord Burnett CJ & Supperstone J)). Second, it is invidious for a judge of coordinate jurisdiction, not sitting in an appellate capacity, to opine on whether a colleague has demonstrated bias. Third, in practical terms, the routine referral of recusal applications to another judge would provide an opportunity for unscrupulous litigants to disrupt proceedings by making unmeritorious allegations of bias. Judges should be astute to avoid any procedure that affords such an opportunity.

In this case, as I have said, HHJ Sullivan did not deal with the recusal application herself, but referred it to HHJ Simpkiss. He declined to deal with it. In the result, it has not been addressed at first instance at all. On one view, the correct approach for me might be to decline to deal with the issue until it has been, but neither party invited me to take that course. I have therefore proceeded on the basis that the Morgans are, in principle, entitled to seek to appeal HHJ Sullivan’s decision of 18 November 2019 on the basis, inter alia, that it is vitiated by bias on the part of the judge. I say “in principle” to make clear that these comments are about procedure, rather than about the merits of this ground of appeal. I turn to these next.

In Mr Bastin’s skeleton argument in support of permission to appeal, the complaint of bias on the part of HHJ Sullivan was advanced on two bases. First, he submitted that the judge had made orders against Mr Morgan in previous litigation in 2013; that Mr Morgan had complained about these orders; and that, at the hearing of the adjournment application on 18 November 2019, the judge made an unprompted reference to this litigation. Mr Bastin submitted that the fact that the judge could recall this previous litigation after so long “is most likely attributable to the fact that Mr Morgan made complaints about her”. Second, Mr Bastin relied on the judge’s references during the course of the hearing on 18 November 2019 to a “level of animosity” in the Morgans’ correspondence and to the tone of Mrs Morgan’s witness statement of 13 November 2019.

There are limited circumstances in which things done by a judge in the course of one piece of litigation will preclude him or her from hearing a subsequent case involving one or more of the same parties. In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C said this at

In this case, it is not said that HHJ Sullivan had commented adversely on Mr Morgan or found his evidence unreliable in 2013. All that is said is that she made two orders, of her own motion, against Mr Morgan in litigation to which he was party. There is nothing to suggest that she expressed herself, at that time or any other, in an

“outspoken” or “extreme” or “unbalanced” way. All those terms would be apt to describe Mr Morgan’s email to her in 2013, as would “rude” and “disrespectful”. There is, however, no evidence that Mr Morgan’s email prompted District Judge Sullivan (as she then was) to respond, let alone to do so in a way that would call into question her impartiality in subsequent litigation involving Mr Morgan. The judge’s reference to the Tallington Lakes litigation may indicate that she remembered it. She may even have remembered Mr Morgan’s unpleasant email. That does not, however, begin to justify a complaint of bias, whether actual, presumed or apparent, against her.

Nor does the judge’s observation that Mr Morgan’s correspondence demonstrates “a level of animosity… that one would not normally expect to see”. I have not read the correspondence to which the judge was referring. I have, however, seen other samples of Mr Morgan’s correspondence, both before and after 18 November 2019. I have also read Mr Morgan’s witness statements of 19 and 30 November 2019, extracts from which I have set out. If these samples of Mr Morgan’s writing style are anything to go by, the judge’s observation was wholly justified. In any event, the observation was expressed in measured terms.

Finally, there is the remark made by the judge about the tone of Mrs Morgan’s witness statement of 13 November 2019. Mr Bastin took the judge to paragraphs 15-17 of Mrs Morgan’s statement, relevant excerpts from which I have set out at [7] above. The judge then said:

“Yes, again, unfortunate that the tone in which they deal with things is aggressive and probably unfounded, but there we are.” Having re-read the relevant parts of Mrs Morgan’s witness statement of 13 November 2019, the descriptor “aggressive” was, in my judgment, wholly apt.

The suggestion that anything said or done by the judge in 2013 or on 18 November 2019 gives rise to an arguable complaint of bias, or that it rendered the proceedings “unfair” in terms of Article 6 ECHR, lacks any semblance of merit. It is not surprising that the complaint was made: Mr Morgan has a tendency to complain of bias when things do not go his way in court. It is, however, surprising that Mr Bastin was prepared to advance this ground of appeal in his skeleton argument in support of permission to appeal. Mr Isaac wisely and properly declined to say anything about it. I refuse permission to appeal on ground 5.

The information supporting the adjournment application on 18 November 2019, insofar as it pertained to the Morgans’ medical conditions, was as follows:

The evidence before HHJ Sullivan did not include any explanation for the Morgans’ decision not to instruct counsel to conduct the trial in the event that the adjournment application was unsuccessful. There was nothing to suggest, for example, that they could not afford to do so. Nor was there any indication that their medical conditions had prevented them from doing so. Nevertheless, both the Morgans were witnesses of fact. Mr Cooper suggested in argument before me that the issues at the trial turned largely on submissions about conveyancing and documentary evidence, and expert evidence, relating to the original location of the boundary. But, at the time of the adjournment application, there were three issues to which the Morgans’ factual evidence was potentially relevant. These were: (i) the Morgans’ alternative claim for adverse possession; (ii) Mrs Egan’s counterclaim for adverse possession; and (iii) Mrs Egan’s counterclaim for aggravated damages on the basis that Mr Morgan had acted “in an aggressive and high-handed manner”, had “knowingly committed trespass” and had “then sought to inflame the situation by the tone of his correspondence”. Mr Isaac told me on instructions (without demur from Mr Cooper) that a draft trial timetable prepared before the adjournment application was made had allowed 2 hours for crossexamination and re-examination of Mr Morgan. That would not have been necessary if, as Mr Cooper at one stage suggested in his submissions to me, Mr Morgan’s evidence had been mostly irrelevant to the pleaded issues. It was not until after the adjournment had been refused that Mr Cooper indicated that Mrs Egan would not be pursuing (iii) and not until the end of the trial that he indicated that she would not be pursuing (ii). The Morgans’ alternative claim for adverse possession remains live.

A judge faced with evidence from a party about his or her medical condition and symptoms is not required to accept that evidence at face value. Here, however, the judge went out of her way to say that she was “not suggesting that Mr Morgan is telling lies about his condition or what he is suffering or indeed, trying to mislead the court in anyway”. As she properly appreciated, the fact that a party has acted in a rude or unreasonable way is not, in and of itself, a reason to believe that he is lying, or even exaggerating, about his medical condition. In those circumstances, her decision to refuse the adjournment was based squarely on the absence of medical evidence. In that respect, I consider that, in exercising her discretion, the judge erred in law or exceeded the margin properly to be accorded to her in five respects.

First, the judge twice referred to the absence of medical evidence capable of satisfying the “test” laid down in Levy, as approved in Hayat. The use of the word “test” suggests that she regarded Levy or Hayat as laying down a rigid rule that, where an adjournment is sought for medical reasons, expert evidence of the kind referred to in Levy is always required. Neither of those cases purports to lay down any such rule. Indeed, as the passage from Emojevbe cited in Hayat at [41] makes clear, the sufficiency of the evidence relied upon will depend on the circumstances. One of the circumstances likely to be germane is the difficulty of obtaining such evidence from busy medical professionals.

A second and related point is that the judge does not appear to have taken into account

Third, I accept that it will in general be difficult to impugn the exercise by a trial judge of the discretion whether to make further enquiries with a view to curing any deficiency in the medical evidence before the court. In this case, however, the judge does not appear to have considered that possibility at all. Given that Mr Wilson’s report had apparently been delayed because he had been unwell, there was every reason to think that it might be available soon – as turned out to be the case. At 2.25pm on the first day of the trial, and faced with evidence from Mr Morgan that he was in serious pain, debilitated by painkilling medication and had gone to hospital for an operation his surgeon had said was urgent, the possibility of making further enquiries should, in my judgment, have been considered. If it had been, the judge might have considered a range of procedural options to enable her, or the parties, to obtain the expert evidence needed to corroborate what Mr Morgan had said. The decision in those circumstances simply to proceed with trial was, in my judgment, one that fell outside the range of reasonable responses properly open to her.

Fourth, it is apparent from what the judge said at the end of her judgment that she was concerned that, by not instructing Mr Bastin to conduct the trial, the Morgans were trying to make the adjournment a fait accompli. Having read the correspondence and witness statements and having formed my own view about Mr Morgan’s approach to litigation, I can understand the judge’s concern. But the fact that the Morgans had not instructed Mr Bastin for the trial was a neutral factor so far as the adjournment was concerned. If there was no sufficient medical basis for the adjournment, the fact that the Morgans would be unrepresented could not justify granting an adjournment. Equally, however, if there was a sufficient medical basis for adjournment, the fact that Mr Morgan may have been trying to influence the court by limiting his instructions to Mr Bastin could not count against him. To my mind, the judge could well take the view that the Morgans had the financial wherewithal to instruct counsel; and the work they had managed to do on their witness statements (which were by no means restricted to the medical issues) provided some basis for thinking that their medical conditions would not have prevented them from instructing counsel in advance of the trial, especially given that the parties’ cases would have been apparent from the pleadings, expert reports and witness statements. But even where a party is represented, he or she is ordinarily entitled to attend a trial, in person or remotely, to hear what is being said and to give instructions as the trial progresses. That right must, of course, be balanced against other considerations (including the need to deal with cases need at proportionate cost in accordance with the overriding objective in CPR r. 1.1). In this case, however, Mr Morgan was not only a litigant, but also a factual witness with material evidence to give, in particular in relation to his adverse possession claim. The fact that it was anticipated that his oral evidence would take two hours gives an indication of its perceived importance. Taking at face value Mr Morgan’s evidence about the pain he was suffering and the effect of the medication he had been prescribed, it is difficult to see how he could have given that oral evidence effectively, or how it would have been fair to require him to do so, whatever accommodations were made. There is nothing in the judgment to show that the judge considered these points adequately or at all.

Fifth, there is some indication in the transcript of the hearing that the judge had in mind that, even if Mr Morgan could not present the case, Mrs Morgan might be able to do so. I accept that the medical evidence before the court on 18 November 2019 is less compelling in relation to her than in relation to Mr Morgan. In particular, it does not provide a solid basis for concluding that she would be unable to cope with a trial if appropriate accommodations were made. It is unclear whether these considerations played a part in the decision the judge ultimately made. If they did, this was in my view a further error. Even if Mrs Morgan could have presented the case, that would not have obviated the need for Mr Morgan to give evidence, which – if his evidence was taken at face value – he was medically unable to do.

Having reached the view that, in refusing to adjourn on 18 November 2019, the judge erred (inter alia) by not allowing further time for the Morgans to file medical evidence, I must now consider whether that error was material: see the principle set out at [38(h)] above. Because the renewed application to adjourn was never considered by HHJ Sullivan, it is necessary for me to consider that evidence myself. Given what is said in Hayat at [43], the subsequently obtained evidence must be admissible pursuant to CPR r. 52.21(2), at least for that purpose. Notwithstanding Mr Cooper’s submissions to the contrary, I am satisfied that Mr Wilson’s letter of 19 November 2019 does what Norris J in Levy said medical evidence should do: Mr Wilson identifies himself (a consultant spinal surgeon) and gives details of his or her familiarity with Mr Morgan’s condition (detailing recent consultations); he identifies with particularity what condition Mr Morgan was suffering from and what features of it prevent participation in the trial process (his inability to sit or stand, having constantly to move between the two, and the “not insignificant” effect of drugs on his ability to concentrate and answer questions); he provides a reasoned prognosis (that Mr Morgan would take between 6 and 12 weeks to recover from the surgery); and his report gives the requisite degree of confidence that the opinion expressed is a reasoned one, reached after a proper examination.

Mr Wilson’s conclusion was that it was “inconceivable” that Mr Mogan could tolerate a period of several hours in court, even if lying flat. Given that the problem was the pain caused by the cyst on his spine, and the effect on him of the drugs he was taking, hearing his evidence (or submissions) remotely would not have helped. It is difficult to think that, if this letter had been before HHJ Sullivan on 18 November 2019, she would have decided to proceed with the trial. In any event, it would in my judgment have been wrong to do so. This means that the failure to allow Mr Morgan to obtain further evidence to substantiate his unfitness to continue with the trial was material. I would add for completeness that in those circumstances the subsequent evidence satisfies the three limbs of the test in Ladd v Marshall [1954] 1 WLR 1489.

Finally, it is necessary briefly to address Mr Cooper’s submission that the Morgans’ claim was so hopeless on the merits that there was no point in granting the adjournment and there is now no point in allowing the appeal. There is some authority for the proposition that a court can proceed in the absence of a party if it is obvious that one or other party is bound to succeed: Decker v Hopcraft, [29] (Warby J). I do not doubt that there are some applications or appeals where that can properly be said. But extreme caution should be exercised before proceeding in the absence of a party with a contested trial (where, ex hypothesi, there has been no successful application for summary judgment) solely on the basis that the claim is obviously without merit. Megarry J’s dictum from John v Rees [1970] Ch 345, 402 is pertinent here:

“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

Here, Mr Cooper submitted before HHJ Sullivan that the lack of merit in the claim was a basis for refusing the adjournment. She declined to consider the point, because it was based on a document that had been discovered by Mrs Egan’s team over the weekend. The document in question was a guidance note from Ordnance Survey dealing with the way in which boundary features are represented on OS maps. Mr Cooper invited me to consider this document as effectively determining the claim in Mrs Egan’s favour and rendering it futile to remit the claim to be determined again. Mr Isaac disputed the relevance of the document. I consider this point wholly unsuitable for resolution in this appeal. My reasons are different from those of the judge. This appeal is concerned with HHJ Sullivan’s refusal to adjourn the trial. It is not concerned with the merits of the claim. In order to understand the significance of the document relied upon by Mr Cooper, it would be necessary for me to investigate the legal and factual issues in the underlying dispute. The materials before me do not enable me to do that. They do not, for example, include the witness statements or expert evidence relied upon at trial. Even if they did, the resolution of this issue, in circumstances where there has been no resolution of it below (either on the adjournment application or otherwise) would be a wholly disproportionate use of this court’s limited resources.

For these reasons, I have concluded as follows:

The matter will be remitted to the County Court at Maidstone for the claim to be tried by a judge other than HHJ Sullivan. This is because, having already conducted the trial in the absence of one party and having reached the point where she was about to give judgment, it would be impossible for any judge to put out of her mind the conclusions she had already reached. It is not because of the allegation of bias against her, which I have rejected as hopeless and which should never have been made.

I will hear submissions from counsel as to any other directions that may be necessary, and as to ancillary matters, before finalising the order.