A judge was wrong to refuse adjourning a trial where one of the litigants injured his back just before the hearing and needed an emergency operation, the High Court has ruled.
Mr Justice Chamberlain said that, on the afternoon of the first day of the trial, Neil Morgan “was in serious pain, debilitated by painkilling medication and had gone to hospital for an operation his surgeon had said was urgent”.
Mr Morgan’s consultant said it was “inconceivable” that his patient “could tolerate a period of several hours in court, even if lying flat”.
But Her Honour Judge Sullivan decided to continue the trial in the absence of both Mr Morgan and his wife. Mr Morgan was not operated on until the end of the week, after the trial finished.
Chamberlain J said Morgan v Egan  EWHC (QB) concerned a boundary dispute between Mr Morgan and his wife Fiona, and neighbour Mary Egan in Sissinghurst, Kent.
The case was listed to be heard on 18 November 2019. Counsel for the Morgans applied for an adjournment on the grounds that husband and wife were both medically unfit to participate.
HHJ Sullivan refused the application and continued with the trial in the absence of the couple until 20 November 2019, when counsel for the Morgans made a further application to adjourn just before HHJ Sullivan gave judgment, combined with an application that the judge recuse herself.
HHJ Sullivan referred the applications to another judge, but they were not determined.
Giving judgment following a hearing on Skype for Business, Chamberlain J said HHJ Sullivan had two witness statements from the Morgans before her at the start of the trial.
Mrs Morgan said that, since mid-October 2019 she “had been suffering from terrible vertigo attacks, which had given rise to severe dizziness” and on “several occasions, she had been close to losing consciousness and fainting”.
Mr Morgan, who had a degenerative back condition, fell off a ladder in October 2019, and had an MRI scan in early November which revealed a cyst on his spine. He was told by his consultant he needed an emergency operation.
His operation, due to take place the week before the trial, had to be postponed because his consultant was unwell. It was then scheduled for the first day of the trial.
Ms Egan’s QC opposed the adjournment, on the grounds that there was “no proper medical evidence before the court and the application had been made on the basis of assertions by Mr and Mrs Morgan”.
HHJ Sullivan dismissed the application to adjourn. Chamberlain J said she was wrong not to have allowed more time for the Morgans to submit medical evidence.
Referring to HHJ Sullivan’s suggestion that a “test” had been laid down by case law, Chamberlain J said there was no “rigid rule”, and the sufficiency of the evidence depended on the circumstances.
HHJ Sullivan should have taken into account Mr Morgan’s explanation that he did not have a medical report because his consultant spinal surgeon was ill.
“At 2.25pm on the first day of the trial, and faced with evidence from Mr Morgan that he was in serious pain, debilitated by painkilling medication and had gone to hospital for an operation his surgeon had said was urgent, the possibility of making further enquiries should, in my judgment, have been considered.
“If it had been, the judge might have considered a range of procedural options to enable her, or the parties, to obtain the expert evidence needed to corroborate what Mr Morgan had said.
“The decision in those circumstances simply to proceed with trial was, in my judgment, one that fell outside the range of reasonable responses properly open to her.”
Chamberlain J said Mr Morgan was not only a litigant, but a factual witness, whose importance was indicated by the fact his oral evidence was anticipated to take two hours.
He allowed the appeal and remitted the matter to Maidstone County Court to be heard by a judge other than HHJ Sullivan, because she had “reached the point where she was about to give judgment”.