Adjournments are granted, but the Rules are structured to limit them and to place the cost on whoever caused the need.
Order 18 Division 1A Rule 11
Proceedings in a Directions Hearing, Pre-hearing Conference or Hearing shall not be adjourned generally, even by consent. If parties require time to consider their position or negotiate a settlement, the proceedings may, with the approval of the judge, be adjourned to a comparatively lengthy period, but always to a fixed date (if appropriate) with liberty to restore the matter to the Directions Hearing or Pre-hearing Conference within that time.
If an appeal is not heard, it must not be adjourned generally. It must be fixed or adjourned to a specific date and time.
Those rules are written for appeals, but the approach they express applies throughout: an adjournment to a fixed date, with liberty to restore if the matter can move sooner. A matter adjourned generally tends not to come back.
Even a lengthy adjournment is permissible where the parties genuinely need time to negotiate — but it is still to a date.
The powers
Order 22 Rule 39(e) — the taxing officer may adjourn any proceedings before him; and Rule 52 allows the officer to order any party attending before him to serve notice of the adjournment on any absent party.
Order 19 Rule 48(2) — a probate taxation is subject to such adjournments as the Registrar may consider necessary from time to time.
Section 212(1)(a) of the Organic Law on National and Local-level Government Elections — on an election petition the Court may adjourn.
Election Petition Rules 2017, Rule 14(2) — the Judge Administrator may adjourn the Pre-hearing Conference as may deem necessary for the parties to fully comply with the directions.
What to do
- Ask as soon as you know. An application made on the morning of the hearing is the least likely to succeed and the most likely to attract costs.
- Tell the other side first and seek their consent. Consent does not bind the Court, but it removes one obstacle.
- Give the reason, and support it — a medical certificate, a witness’s travel, an outstanding transcript. An unexplained request is unlikely to be granted.
- Propose a new date, and say what will be done in the meantime.
- Deal with costs, and be ready for an order that you pay the costs thrown away.
- Ask for liberty to restore where the adjournment is for a longer period.
Order 22 Rule 5(1) allows the Court to deal with costs at any stage of the proceedings, and Rule 5(2) to require that they be paid immediately, notwithstanding that proceedings are not concluded.
And Rule 20: where any person fails to comply with any provision of these Rules or any judgement or order of the Court, the Court may order him to pay the costs of any other person occasioned by the failure.
Order 22 Rule 65
Rule 65(2): a solicitor is responsible for default where proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of a failure —
(a) to attend in person or by a proper representative; (b) to file any document which ought to have been filed; (c) to deliver any document which ought to have been delivered for the use of the Court; (d) to be prepared with any proper evidence or account; or (e) otherwise to proceed.
The Court may then, after giving the solicitor a reasonable opportunity to be heard, disallow the costs as between solicitor and client, order repayment to the client, or direct the solicitor to indemnify any party other than his client. See costs against a lawyer.
The consequences
Order 22 Rule 41 — where a party has had due notice of the time appointed, the taxing officer may proceed in his absence.
Order 19 Rule 48(3) — on a probate taxation, where either party does not appear, the Court may order the Registrar to proceed.
Election Petition Rules 2017, Rule 11(2) — where a respondent fails to file a notice to appear, the Court may proceed to deal with the petition in his or her absence.
ADR Rules 2022, Order 2 Rule 11(2) — non-attendance at a mediation may lead to dismissal of the proceeding or a defence struck out. See failing to attend mediation.
Order 10 Rule 9A adopts the Listings Rules, which provide for summary disposal of matters not being prosecuted; Order 18 Division 1A Rule 12(4) allows summary determination of an appeal; and Rule 18 of the Election Petition Rules 2017 allows a petition to be dismissed where the defaulting party is the petitioner.
A pattern of adjournments is itself evidence that a matter is not being prosecuted.
Contact the Registry and the other party immediately, in writing, with the reason. Silence is treated as default; a communicated difficulty is usually accommodated.
See behaviour in court.
Sources
- National Court Rules 1983 — O 10 r 9A; O 18 Div 1A rr 10–12; O 19 r 48; O 22 rr 5, 20, 39, 41, 52, 65
- Alternative Dispute Resolution Rules 2022 — O 2 r 11
- Election Petition Rules 2017 — rr 11, 14, 18
- Organic Law on National and Local-level Government Elections — s 212
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.