A senior circuit judge who “clearly thought” that a litigant with severe depression was “putting on an act” has been strongly attacked by the vice-president of the civil division of the Court of Appeal.
Lady Justice Gloster said HHJ Simon Brown QC “did not explain why he felt able to reject the doctor’s view” that Sanjay Solanki had reported suicidal thoughts only six days before the hearing, and his mental state was consistent with a diagnosis of severe depression.
Gloster LJ said the judge’s own view, “apparently based on his observation of the appellant in court, was no substitute for the professional medical evidence provided by the general practitioner which clearly demonstrated that the appellant had a genuine history of depression and mental problems, for which he had been prescribed medication over a period of time”.
She said Mr Solanki, who was representing himself and had applied for an adjournment on the grounds of ill health, was “plainly ill and there was no evidence to suggest that the illness was contrived”.
Gloster LJ went on: “Moreover, the judge did not appear to base his view on any suggestion that the appellant had previously applied for adjournments, whether on grounds of ill health or otherwise, nor did he indicate in what respect, if any the medical evidence was inaccurate.”
HHJ Brown, who sat in the Mercantile Court in Birmingham, retired in 2016.
The Court of Appeal heard in Solanki v Intercity Telecom  EWCA Civ 101 that following the departure of Mr Solanki, who had been a senior manager, the defendant companies alleged that he had breached his contract of employment and their database rights by “downloading highly confidential customer information from their databases onto memory sticks and by using electronically stored information” to solicit customers.
Mr Solanki maintained that he resigned on the basis of a repudiatory breach; his employment tribunal claim has been stayed pending conclusion of these proceedings.
He eventually admitted that he had copied information onto memory sticks and so he was in contempt of court for breaching the terms of a court order.
Shortly before his trial in February 2015, at which he was not present, Mr Solanki applied for an adjournment on health grounds, which was refused. His defence was struck out and the company was awarded damages of over £290,000 for breach of contract.
Mr Solanki appealed, on the grounds that his rights under article 6 of the European Convention on Human Rights had been breached because he was not afforded a fair trial, he was prevented from calling witnesses of fact to rebut the allegations made against him and was not given adequate time and facilities for the preparation of his defence.
Gloster LJ said the consequences of the refusal of the adjournment in this case were “particularly severe” for Mr Solanki.
“The appellant’s defence was struck out and he was deprived of an opportunity to give live evidence, to cross-examine any of the respondents’ witnesses or to call evidence on his own behalf.
“The respondents’ evidence was adduced without any challenge since the two witnesses called did nothing more than state that their witness statements were true. Moreover, the appellant faced a claim for what, so far as he was concerned, was a substantial sum in damages and resultant legal costs.”
Gloster LJ said the judge had “no reason to doubt the veracity” of the medical report from Mr Solanki’s GP in February 2015 that “he was not medically fit to represent himself for a five-day hearing on account of his severe depression, suicidal thoughts, and lack of concentration as well as managing only two-three hours of sleep each night”.
The vice-president said that “from the tone of his language” – the judge talked about “a further purported application on the grounds of ill-health” – HHJ Brown “clearly thought that the appellant was putting on an act”.
Gloster LJ said she was “unable to conclude” that the case had been dealt with justly, in accordance with Mr Solanki’s article 6 rights or the overriding objective.
She said HHJ Brown was also “wrong in principle” in refusing an application to set aside his earlier judgment. “It was unfortunate, to say the least, that he gave no reasons for his refusal.”
She allowed the appeal, set aside the judgment and directed a new trial in the Commercial Court.
Gloster LJ said HHJ Brown was also wrong in awarding the company over £83,500 in costs for the committal proceedings for contempt, and had breached the “basic principle that costs in relation to a contempt application should be reasonable and proportionate and not penal”.
She set aside HHJ Brown’s summary assessments and remitted the issue of costs to a detailed assessment by a costs judge at the Birmingham Registry. Lord Justice Singh agreed.
HHJ Brown was rapped over the knuckles by the Court of Appeal in 2013 for cutting and pasting counsel’s submissions into his ruling.