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Adjournment when a witness is temporarily incapacitated by illness (Bilta v Traditional Financial Services)

Adjournment when a witness is temporarily incapacitated by illness (Bilta v Traditional Financial Services)
Published on: 25 February 2021
Published by: LexisPSL
  • Adjournment when a witness is temporarily incapacitated by illness (Bilta v Traditional Financial Services)
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Article summary

Dispute Resolution analysis: On an application to adjourn a trial or other hearing on the grounds that a witness is unable to attend due to illness the court needs to answer two questions. The first of these is—is the witness genuinely disabled temporarily from attending court to give evidence. If the answer to this is affirmative, then the second question is—would it be fair to hold the applicant party to the trial date having regard to the importance of the evidence of the witness to the applicant party’s case and the desirability of the witness’s evidence being tested under cross examination before the trial judge. If the ensuing trial would not be a fair trial by reason of the absence of the witness, then the trial should be adjourned unless such adjournment would cause injustice to the other parties that cannot be compensated for in costs. On an appeal from the refusal of an adjournment where it is established that the witness is temporarily disabled from attending court, the question for the Court of Appeal is whether the judge’s decision was fair, not whether his decision was within the wide ambit of a discretion. Nevertheless, there may well be more than one fair outcome of such an application and the Court of Appeal will not weigh competing fair outcomes. Written by David Fisher, barrister and associate member, at New Square Chambers. or take a trial to read the full analysis.

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