Reference:  EWCA Civ 1345
Court: Court of Appeal
Judge: Mummery and Sedley LJJ
Date of judgment: 25 Nov 2010
Summary: Defamation - Adjournment – Refusal of adjournment – Delay – Legal representation – Fair trial – Litigant in person - Right to jury trial - Waiver
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Desmond Browne QC CBE - Leading Counsel (Respondent)
Instructing Solicitors: McGrigors for the Appellant; Carter-Ruck for the Respondent
The appellant (T) appealed against two decisions of the trial judge refusing to adjourn a trial to enable T to be professionally advised and represented.
The respondent (B) had sued T for defamation for his appearance on a television programme transmitted in the UK. On the Friday before the trial was due to start, T, who was unrepresented but had a McKenzie friend, applied to adjourn the trial in order to seek and obtain professional representation. The application was refused on the basis that there had been significant delays in the history of the proceedings; the broadcast complained of had been transmitted 3 years ago; the subject matter of the libel action dated back to 2003; an adjournment would mean probably a further eight-month delay which would cause very significant irrecoverable cost. On the Friday, T also indicated to the Court that he did not want a jury trial. Upon B consenting, mode of trial was varied to judge alone.
On the first day of trial, T renewed his application for an adjournment of the trial on the same basis as the previous application but additionally on the ground that a charity had offered to provide funding and that a firm of solicitors was prepared to take his case as soon as they were paid. The judge refused the renewed application on the basis that there was no clarity as to whether the legal funding would be available.
T appealed the refusal to adjourn and contended that the failure to allow him to obtain legal representation at the trial meant that the subsequent trial was unfair to him given the inequality of arms. It had also deprived him of obtaining proper advice in relation to mode of trial and the Court should not have permitted T to surrender his right to trial by jury without receiving appropriate legal advice given the significance of the decision.
The Court of Appeal ordered an inter partes hearing to determine whether permission to appeal ought to be granted.
(1) Whether T’s agreement to trial by judge alone was given without sufficient safeguards to make it a valid consent; and
(2) Whether the judge ought to have adjourned the trial to enable T to be professionally advised and represented.
Refusing permission to appeal on the first issue, granting permission to appeal on the second issue but dismissing the appeal:
(1) It was clear from the transcript before the Judge that T had fully consented to the variation of mode of trial to judge alone; indeed, he had initiated it. The fact that a party who has waived a legal right may come to regret it cannot undo the waiver that has been given unless there is a basis on which to conclude that the consent was not truly given. In the instant case, the Judge’s explanations to T of what was involved could not have been fairer or clearer. T plainly understood what was at issue and, whether for good reasons or bad, had formed the view that he did not want a jury trial.
(2) The test to be applied to a decision on the adjournment of proceedings is not whether it lay within the broad band of judicial discretion but whether, in the judgment of the appellate court, it was unfair. This is a question of law: Gillies v Secretary of State for Work and Pensions applied. The assessment made by the court below is not eclipsed or marginalised on appeal. The appeal court is concerned with what is fair in the circumstances identified and evaluated by the Judge below. The question is whether the decision was a fair one; not whether it was the fair one.
There may be cases where the inequality of arms is so great that the only fair thing the state can do is provide legal representation for the weaker party: Steel and Morris v United Kingdom . But this was not such a case.
The facts as they presented to the Judge on the first day of the trial were such as only to indicate a chance that T might be represented and this was insufficient to justify adjourning the trial. This was not unfair.
The case marks a departure from the line of authority from G v G  1 WLR 647, in which the Court of Appeal had laid down that it will only interfere with an exercise of discretion by the Judge below if s/he had “exceeded the generous ambit within which reasonable disagreement is possible”. Following Gillies, the Court of Appeal in the instant decision ruled that when considering whether to grant an adjournment it is not a question of the exercise of a discretion but reaching a decision that is fair in the circumstances that are presented to the Judge at first instance.