Please note: This article is intended to be brief information only and should not be relied or acted upon as legal advice. You should always seek legal advice tailored to your own individual circumstances. Please also note that this article is current as at the date of publication and the law may have subsequently changed since.

Making an adjournment request

Often parties to court proceedings want to adjourn a court date due to:

• the unavailability of parties, witnesses or lawyers, including due to illness, medical treatment or pre-booked travel
• a need for further time to prepare the case or obtain evidence
• a desire to obtain legal advice or enable settlement negotiations
• wishing to avoid prejudicing a future criminal trial in respect of the same subject matter.

An application or request for an adjournment needs to be made in accordance with the rules and practice applicable in the particular court or tribunal. Any application will usually need to be accompanied by sufficient evidence regarding the grounds on which an adjournment is sought (which, depending on the jurisdiction, may include an affidavit). A failure to produce sufficient supporting evidence may result in an adjournment request being refused.

Consent adjournments

Sometimes, adjournments can be agreed with the other party’s consent. Where appropriate, a party should consider attempting to seek an adjournment by consent (particularly in respect of requests made in a timely manner) to avoid putting the parties to further costs in respect of a further application. Where an adjournment is sought by consent, the relevant court or tribunal will generally retain a discretion as to whether the adjournment will be granted. A court or tribunal may be disinclined to grant an adjournment by consent where a listed court date is imminent (due to the potential wastage of the court’s resources).

Proper basis for adjournment

An application for adjournment will ordinarily be determined on its own merits. There should be no presumption that an adjournment will be granted and the filing of a formal application for an adjournment does not mean the adjournment will automatically be granted.

Whether an adjournment should be granted is usually a matter for the discretion of the relevant judicial officer, having regard to the interests of justice.

In considering an adjournment request and the interests of justice, a judicial officer will usually be required to consider the basis for any requested adjournment and any potential prejudice which the other party may suffer as a result of an adjournment.

Courts are generally disinclined to grant adjournment requests unless there is a good reason for the making of a request. Mere inconvenience will usually not be a sufficient reason and rather unforeseen or exceptional circumstances will usually be required (which would result in the party suffering material prejudice if the adjournment was not granted).

Previous non-compliance with court orders or delay, may be relevant to determining whether an adjournment request ought to be granted.

Late adjournment requests

It is usually necessary to make an adjournment request at the earliest opportunity.

In the event that an adjournment is sought at a late stage, there will usually be a requirement to validly explain the reason for the delay in seeking an adjournment. If an adjournment is requested at a late stage, it can often result in adverse costs orders being made against the party seeking the adjournment even if the request is successful.

In the event that a party suffers illness or misadventure on the day of a scheduled hearing, it is usually appropriate to let the other party and the court know as soon as possible and to obtain and provide any supporting evidence as a matter of urgency.

Costs

Depending upon the jurisdiction and the particular proceedings, an adjournment request (whether successful or not) may result in adverse costs orders being made against the party seeking the adjournment. Such costs orders can include the other party’s costs of the application for an adjournment and any costs “thrown away” (i.e. wasted or lost by the other party) by an adjournment being granted.

The rationale in such circumstances is that the court or tribunal seeks to avoid an adjournment causing prejudice to the other party by requiring the party seeking the adjournment to pay the other side’s legal costs in connection with the adjournment.

Appealing a decision to refuse an adjournment

If an adjournment request is refused, there may be an ability to appeal the decision or otherwise seek judicial review of such a decision. Ordinarily, an appeal court will not interfere with the exercise of a judicial officer’s discretion in respect of an adjournment request, unless it can be shown that an error has been made in the exercise of it.

Error may be shown by establishing that the judicial officer acted on a wrong principle, took into account an irrelevant consideration or failed to take into account a relevant consideration.

If you require advice or assistance, please do not hesitate to contact us.