Ashford Borough Council & Anor v Wilson

By this application, the defendant applies to adjourn the trial of this matter, which is fixed to take place in a three-day window starting next week, on 1 February 2021.

The background is that the claimant borough council and the second claimant assert that over a period of time, starting in April 2011, the defendant has carried out a campaign of harassment against various officers of the first claimant, escalating in 2020, such that on 20 July 2020 a Part 8 claim was issued and the following day an application for an interim injunction was served on the defendant with the Part 8 claim. In response, on 23 July the defendant sent a large volume of documents to the court which the claimants say duplicated many of the documents already in the evidence in support of the interim injunction. The matter came before HHJ Auerbach, sitting as a Deputy High Court Judge, on 24 July and he made an order for an interim injunction.

On 19 August 2020, the defendant applied to change the trial listing so as to enable oral evidence, that is, he sought to transfer these to Part 7 proceedings rather than Part 8, and when the claimants refused that, he made an application on 9 September 2020. That came before Master Cook on 19 October 2020, when the defendant's application was refused and Master Cook certified the application as having been made totally without merit. He made an order for costs against the defendant and he supplemented that with an order that the defendant make an interim payment of £5,000 on account of those costs. I am informed that those costs have not been paid, save for, I think, three payments of £50 made by the defendant's wife.

In any event, the matter was listed for trial in December, and on 7 December the defendant applied to adjourn the trial on the basis of his need to self-isolate by reason of potential exposure to Covid-19 (coronavirus). That application was opposed but it was allowed by Judge Auerbach, again sitting as a Deputy High Court Judge, in a hearing on 9 December. In allowing that application, Judge Auerbach gave very full reasons, which I do not need to repeat in full for present purposes, but at para.36, he said this,

In making that direction, the learned judge was reflecting the authorities upon which Mr Solomon QC for the claimants has relied, including the case of Decker v Hopcraft [2015] EWHC 1170, a decision of Warby J (as he then was), where the learned judge referred to the issue of whether effective participation is possible or not owing to an applicant's medical condition. He said, at para.28:

Furthermore, in GMC v Hayat [2018] EWCA Civ 2796, the Court of Appeal set out well-established principles in relation to applications on the basis of alleged or asserted ill-health. Thus I refer to para.37, in which the court referred to the required standard of medical evidence and the endorsement of the decision of Norris J in Levy v Ellis-Carr [2012] EWHC 63 (Ch), where he said, at para.36:

Returning to the history: on 21 December 2020, Stewart J ordered that the trial be listed in the Hilary term 2021 and gave directions, including in relation to special measures for the defendant.

On 11 January 2021, the claimants applied to the court for an order that the trial be held remotely by video platform because of the severe nature of the current public health emergency. Putting that into context, at about the same time, the Government ordered the third significant lockdown as a result of the Covid-19 pandemic, and there appears to be no prospect of that lockdown being lifted before the date when this matter has been fixed for trial next week.

On 13 January, Steyn J ordered the defendant to file evidence in opposition to the claimants' application for a remote hearing and the defendant did so by way of a statement dated 15 January 2021, which is at p.61 of the bundle. In that statement Mr Wilson said, at para.3, that he believed the trial could proceed in person but with the claimants' representatives attending remotely in a form of hybrid hearing. He asserted, at para.4, that he had considerable hearing difficulties. He contested that he had coped well in the hearing before Judge Auerbach in July 2020 and said that any recording of that hearing would confirm that

At para.14, Mr Wilson set out some of his medical history. He suggested that he had already exceeded his prognosis for survival by the medical profession. He said he had diabetes and an oxygen mask to help him to breathe. He said that by reason of his diabetes he was at risk of going into a hypoglycaemic state, of which the trial judge would need to be aware, and that a nurse would need to be available at the Royal Courts of Justice to attend to him. He also referred to his problems of dysuria and urinary frequency, with the difficulties that would cause for him in both travelling to London and attending in court all day.

On that basis, the matter came before Steyn J again on 20 January and she made an order for a hybrid hearing, refusing the application of the claimants that it be a wholly remote hearing. By implication, she also refused the application which the defendant had made in para.7 of his witness statement for an adjournment of the hearing. In her order, which starts at p.40 of the bundle, she gave full reasons for the order she was making, and she said this,

Two days later, on 22 January 2021, the defendant then made a formal application to adjourn the trial, and that is the application which has come before me pursuant to the order

Opposing the application, the claimants' solicitor, Mr Mortimer, has made a witness statement on 26 January 2021 and from that witness statement, Mr Solomon QC for the claimants derives four points:

In support of the application, Mr Deakin has appeared on behalf of the defendant and he made his application on commendably brief grounds, which are simply that the defendant, having come into contact with someone who was Covid-19 positive, now needs to self-isolate and that self-isolation will take him through to the trial date and that the trial should not proceed but should be adjourned because were it to proceed remotely, the defendant, who is profoundly deaf, would be unable to hear the proceedings adequately, as is his right.

In answer, Mr Solomon QC, having taken me through the background and the authorities, points out that this is the second application to adjourn by Mr Wilson and has been made on the same basis as the first application. Actually, if one looks at para.7 of the defendant's witness statement of 15 January 2021, where he said, "I would ask for a postponement of the trial until the first open date after 21 February 2021" it could be said that this is in fact the third application for a postponement. Mr Solomon refers to the fact that, on the basis of the paragraphs from her judgment which I have read, Steyn J would have refused to adjourn. In fact it could have been said that if that was an application to postpone made by Mr Wilson, she actually refused to adjourn.

He relies on the lack of any clear medical evidence, when the Court of Appeal has made clear on numerous previous occasions the high standard required if an adjournment is to take place on the basis of medical grounds. He refers to the lack of any proper evidence of the defendant's need to self-isolate. He refers to the lack of any proper evidence of the profound hearing impairment asserted by the defendant such that he could not properly participate in a remote hearing, combined with Judge Auerbach's comments of the need for proper medical evidence should a further application to adjourn be made. He submits that the hearing can proceed fairly as a remote hearing in any event, the claimants having served all the documents upon which they rely back in July, and there being no live evidence at the trial, together with the defendant's counsel having had access to all the documents for the trial.

This is supported by the fact that I have seen a skeleton argument drafted by Mr Deakin for the purposes of the trial. He submits that on the basis of the principles to which I have referred in the Decker case at para.28, this application does not come even close to satisfying the requirements for an adjournment and, indeed, the application is so hopeless that I should certify it as having been made totally without merit. He also refers to the public interest in fixtures not being broken and also the fact that in principle, where interim injunctions have been obtained, it is the interests of justice for all parties that the full trial and the return date should come before the court sooner rather than later.

In my judgment, Mr Solomon QC is right in his submissions. This application does not even get off the ground in satisfying the court that there should be an adjournment. Firstly, as Mr Deakin was obliged to acknowledge and recognise, there is no evidence of even a remotely satisfactory nature in support of the application. It is, in my view, no coincidence that the defendant, having asked for a postponement of the trial until the first open date after 21 February, and that application effectively having been rejected by Steyn J on 20 January 2021, should have made an application in exactly the same terms to the claimants two days later on 22 January claiming to have been exposed to someone who had tested positive for Covid-19 on that same day. Otherwise it is an extraordinary coincidence that, having been, effectively, refused a postponement of the trial by Steyn J, he should have encountered somebody only two days later such as to give him, in his view, grounds to make such an application formally to the court.

Furthermore, he does not explain how he has managed to expose himself to someone with Covid-19 when, on his own account, he was at that time self-isolating, which of course means self-isolating at home. The place where he says he was exposed (The Limes) is not his home and, if he was indeed self-isolating, he should not have been in The Limes at all, never mind exposed to someone who had Covid-19 and therefore, I assume, put himself at risk by not taking the appropriate precautions. That is all the more mystifying given the medical condition which Mr Wilson has asserted in his witness statement he suffers from, which would make him extremely vulnerable to Covid-19 were he to contract the virus. A combination of his medical condition, namely his diabetes, and his age and his other

There is no explanation for any of that from Mr Wilson and, in the absence of such an explanation, I consider that I am entitled, given the background to this case, and the chronology which I have described, to be sceptical of the reasons which have been put forward by Mr Wilson. Furthermore, Mr Solomon is right that were I to accede to this application, I would effectively be going behind the order of Steyn J, because she made it quite clear that had she considered the application before her to be an application for an adjournment, she would have rejected it, and yet inarguably cynical fashion, in the face of those remarks by Steyn J, the defendant has made this application to the court, almost, if I can use this expression, cocking a snook at what Steyn J said.

Additionally, now that the crunch has come, as it were, in relation to whether a remote hearing can fairly take place, it seems to me significant that there has been no proper medical basis put before the court as to why such a hearing cannot take place fairly. While the court may have been prepared to take a relatively relaxed view whilst the possibility of a hybrid hearing was still in play, now that Mr Wilson has effectively disqualified himself by his own actions - if his evidence is to be believed, which I doubt - from a hybrid hearing, the court is faced with the very real alternative of either proceeding with a remote hearing or adjourning the hearing, and in those circumstances, nobody in Mr Wilson's position could have been in any doubt from what had been said on previous occasions, by both Judge Auerbach and also by Steyn J, of the need to support the application with proper evidence, including proper medical evidence - and by making this application in the way that he has, without any proper evidential support at all - the defendant has not treated this court with the respect that it deserves, in my view.

In those circumstances, and for those reasons, I refuse the application and I certify it as having been made totally without merit.

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