Dick v Piller
| Jurisdiction | England & Wales |
| Date | 1943 |
| Year | 1943 |
| Court | Court of Appeal |
County court - Adjournment of hearing - Illness of material witness - Duty of judge.
When a witness in, or a fortiori a party to, an action in a county court is alleged to be prevented by illness from attending the court for a hearing of the case and the judge is satisfied of the fact of his illness and of the materiality and importance of his evidence and that the granting of an adjournment will not cause an injustice to the other party which cannot be reduced by costs, it is the duty of the judge to grant an adjournment, it may be on terms, and failure on his part to do so constitutes a miscarriage of justice which necessarily involves all error of law on which an appeal may be founded:—
So held by the Court of Appeal (Scott L.J. and Croom-Johnson J., du Parcq L.J. dissentiente).
APPEAL from Epsom county court.
The plaintiff, Robert Dick, a trainer of race-horses, brought an action in the county court against the defendant, Henry Piller, to recover 51l. 8s. 1d. which he alleged to be due under an oral arrangement made between the parties in connexion with the training and racing of race-horses belonging to the defendant's daughter. The case came on for hearing on September 16, 1942. It was not concluded on that day, and the hearing was ultimately postponed by consent until December 9, on the ground of the defendant's illness, a medical certificate regarding his state of health being filed with the consent. On December 2 the defendant's doctor gave a certificate in writing to the effect that by reason of in health, the defendant was unable to follow his occupation. On December 3, the defendant's solicitors by letter informed the plaintiff's solicitors of the defendant's illness, sent them a copy of the doctor's. certificate, and asked for a further adjournment of the case. This request was refused. On December 7, the defendant's solicitors again wrote to the plaintiff's solicitors enclosing a further medical certificate to the effect that the defendant would be unable to leave home probably for two weeks. On December 9, the defendant's solicitors and counsel attended the court. His counsel, in applying for an adjournment, informed the judge of the position, read the correspondence which had passed between the solicitors, produced the medical certificates and told the judge that the defendant's doctor could, if necessary, attend the court or swear an affidavit. The judge refused to grant an adjournment, and the hearing of the plaintiff's case was continued. At its close the defendant's counsel again asked for an adjournment on the ground that the defendant's evidence was vital, but this application also was refused. The only witness available to the defendant gave evidence, and the judge gave judgment for the plaintiff for 44l. 3s. 10d. The judge's note with reference to the application for an adjournment read: “Adjournment refused in absence of affidavit.” The defendant appealed on the ground that, in view of the materiality of the defendant's evidence and of his condition of health, the refusal of the judge to grant an adjournment constituted a miscarriage of justice.
J. L. Poole for the defendant.
H. M. Pratt for the plaintiff.
May 4. The following judgments were read:
SCOTT L.J. This is an exceptional case involving a point of practice of some importance in regard to the right of appeal to the Court of Appeal where a county court judge refuses an adjournment asked for on the ground of the inability of a party to attend whose evidence is materially relevant to the proper hearing of his case. Prima facie his discretion is unfettered, and, in addition, it may be that the Court of Appeal has less power to interfere with him than with a High Court judge from whom an appeal lies on fact as well as law, but the very finality of his decision on every question of fact increases, if anything, the importance of this court, if it thinks the discretion has been wrongly exercised, making sure that there has been no error of law. The appellant was defendant in an action for 51l. 8s. 1d. brought by his agent against him as principal on a running account between them in respect of moneys paid by, or remuneration for services rendered, in connexion with the training and running of the defendant's horses in races. The defendant admitted indebtedness for rather more than half the amount claimed, but sought to “surcharge and falsify” the plaintiff's account in certain respects, disputing the balance on the ground of part overpayments and various other grounds which it is unnecessary to investigate for the purpose of the appeal, as it is, in my opinion, clear that the current arrangements were throughout made by word of mouth, and the payments were made personally between the plaintiff and defendant without documentary records. The defendant's evidence was, therefore, material, and, perhaps, critically important, if the issues raised were to be really tried on their merits, for nobody else could give his evidence. In refusing the adjournment, therefore, I think that the county court judge deprived the defendant of a hearing.
The only question in the appeal is whether the judge erred or misdirected himself in law in refusing the adjournment. du Parcq L.J. thinks that, if the judge erred, his error was an error of fact. Croom-Johnson J. thinks there was an error of law. I have read both judgments with care, and agree with the conclusion arrived at by the latter, although I agree with the former that, if the refusal of the adjournment had been an exercise of discretion on a pure question of fact, no appeal would have lain under s. 105 of the
[His lordship detailed the facts, and continued:] The case resolves itself into a short question of law. If an important witness — a fortiori if he is a party — is prevented by illness from attending the court for an adjourned hearing, at which his evidence is directly and seriously material, what is the legal duty of the judge when an adjournment is asked for? In my view, if he is satisfied (1.) of the medical fact and (2.) that the evidence is relevant and may be important, it is his duty to give an adjournment — it may be on terms — but he ought to give it unless, on the other hand, he is satisfied that an injustice would thereby be done to the other side which cannot be reduced by costs. These questions may depend on matters of degree, and matters of fact may be involved (as du...
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Cases referred to in 1989 Part II
...413 Dibiamaka & Ors. v. Osakwe & Ors. S.C. 136/1985 of 5/5/89. ................................ 447 Dick v. Pillar (1943) 1 K.B. 497, 507 413 Dike Nwora v. U.B.A. Ltd. (1978) 2 L.R.N. 149. .......................................................... 517 Dixon v. Sadlar (1839) 9 L J Ex 48 ..........