Carson v McKee [2025] NICA 53 — Courts must grapple with operative medical evidence before refusing adjournments; failure is a material error warranting limited remittal

Introduction

In Carson v McKee [2025] NICA 53, the Court of Appeal in Northern Ireland (Keegan LCJ, Treacy LJ and Colton J) delivers important guidance on adjournment applications grounded in medical incapacity and the centrality of procedural fairness under Article 6 ECHR. The appeal arose from a long-running chancery dispute about a 2015 transfer of 19 acres at Ballee Road West, Ballymena, Co Antrim, culminating in an order rescinding the transfer and restoring title to the vendors (Mrs Fiona Mary McKee and Mr Samuel James McKee), with consequential orders relating to land registration, possession, costs, and monetary adjustments following equitable rescission.

The Court of Appeal upheld almost all of the first-instance orders, but found a discrete error in the judge’s handling of a medical-adjournment issue at the remedies stage. Specifically, the court ruled that the judge failed to engage with the operative recommendation of a consultant psychiatrist (Dr Bunn) that the appellant should undergo short, stabilising intervention before any participation (in person or remotely). That omission rendered the refusal to adjourn a material error in the exercise of discretion. The case thus clarifies the approach Northern Irish courts must take when credible medical evidence bears directly on a party’s capacity to participate and affirms that surgical remittal of a discrete issue is an appropriate appellate remedy where fairness requires it.

Background and Key Issues

The plaintiff, Mrs McKee, sought to set aside an August 2015 transfer of lands to her neighbour, the appellant Mr Samuel Forbes Carson. She alleged she believed she was receiving a loan to address an HMRC liability, not selling the land and the riding school business she had built and operated on it. Mr Carson maintained the McKees agreed to sell for £80,000 and denied misrepresentation or undue influence, accepting only that the price was “keen”.

After a five-day trial, the High Court (McBride J) decisively preferred the plaintiff’s account, found misrepresentation, and granted equitable rescission. The matter then moved to remedies: how to unwind the transaction financially following rescission. During this phase (2024–2025), Mr Carson repeatedly raised medical issues (including PTSD), provided psychiatric and therapeutic reports, and missed certain hearings. The judge proceeded with the remedies hearing in his absence on 6 February 2025, concluding that the medical evidence showed he could participate remotely and that bringing matters to a close would be beneficial to his mental health. Ultimately, the judge’s final order (23 May 2025) implemented rescission, required vacant possession within three weeks, directed re-registration of the folios in the McKees’ names as tenants in common, and ordered that neither the plaintiff nor the second defendant had to make any payment to Mr Carson following rescission.

On appeal, Mr Carson advanced three strands of complaint:

Insufficient adjustment for his status as a litigant in person.
Failure to accommodate his disabilities.
Failure to give proper weight to medical evidence and conducting hearings in his absence.

He also sought, belatedly, to expand the appeal to challenge the original June 2022 liability judgment. The Court of Appeal refused that application.

Summary of the Judgment

The Court of Appeal:

Refused leave to amend the appeal to challenge the 2022 liability findings. The attempt was out of time, unjustified, and in substance attacked fact-finding credibility assessments to which appellate courts accord high deference.
Dismissed the grounds alleging inadequate allowance for a litigant in person and failure to adjust for disability; the first instance judge had provided reasonable accommodations, including remote attendance by Sightlink.
Allowed the appeal on a narrow ground: the judge, in refusing an adjournment and proceeding with the 6 February 2025 remedies hearing in the appellant’s absence, left out of account a material consideration—namely the operative recommendation in the psychiatric report that the appellant should undergo short, stabilising treatment prior to participation. This constituted a material error in the exercise of discretion.

Consequent orders:

Only paragraph [6] of the High Court’s order (concerning monetary relief following rescission) is to be reheard. All other orders remain in force, including rescission, re-registration, costs directions associated with registration, and the requirement to deliver vacant possession within three weeks of the appellate judgment.
Directions to avoid further delay: within seven days, each party must file an affidavit on monetary remedy; the matter is remitted to a different judge for determination; a directions hearing is listed for 24 October 2025 and a short hearing should be convened in November 2025. Costs are reserved.

Detailed Analysis

Precedents and Authorities Considered

The Court of Appeal grounded its analysis in a line of authorities emphasising that adjournment decisions—especially where medical incapacity is asserted—are fact-sensitive but anchored in the overarching requirement of fairness.

Bilta (UK) Ltd (in liquidation) v Tradition Financial Services Ltd [2021] EWCA Civ 221: The English Court of Appeal allowed an adjournment where a central defence witness was medically unfit to testify. The key principles distilled at para [30] of Bilta include:
- Fairness in all the circumstances is the guiding principle.
- No mechanistic checklist; the assessment is fact-sensitive.
- No sharp distinction between a party’s unavailability and that of a critical witness; both can be decisive.
- If refusal of an adjournment would make the trial unfair, an adjournment should ordinarily be granted, notwithstanding inconvenience, unless outweighed by uncompensable injustice to the other side.
In Carson v McKee, the Court of Appeal explicitly applied Bilta, confirming its relevance in Northern Ireland and extending its rationale to the remedies phase and to the illness of a party (rather than merely a witness).
Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101: Gloster LJ reiterated that appellate review examines whether refusing an adjournment was “unfair,” especially where Article 6 rights are engaged. Overall fairness to both parties must be considered.
Teinaz v Wandsworth LBC [2002] EWCA Civ 1040: Peter Gibson LJ emphasised that a litigant needed for a fair hearing who, through no fault, cannot attend, will usually have to be granted an adjournment. However, the tribunal is entitled to be satisfied of the genuineness of the incapacity, and the onus is on the applicant to prove the need.
Albon v Naza Motor Trading Sdn Bhd (No 5) [2007] EWHC 2613: Illustrates that courts may refuse adjournments where the asserted reasons are not genuine or reflect litigation tactics designed to thwart a fair determination.
Levy v Ellis-Carr [2012] EWHC 63: Offers practical judicial guidance: parties cannot compel adjournment by non-attendance and a bare invocation of “medical” stress; the decision remains one of principled discretion, often taken swiftly within busy lists.
McGraddie v McGraddie [2013] UKSC 58: Cited to underline appellate restraint regarding first-instance credibility findings; absent perversity or material error of principle, such findings stand. This supported the Court of Appeal’s refusal to permit a late attack on the 2022 liability judgment.

Legal Reasoning

The Court of Appeal framed the central question as one of procedural fairness under Article 6 ECHR: did the judge err in refusing an adjournment in light of the medical evidence, thereby rendering the remedies process unfair?

Key steps in the court’s reasoning included:

Identifying the applicable standard: Adjournment decisions are discretionary and fact-sensitive; appellate intervention is justified only where the decision is plainly wrong or omits a relevant consideration, or relies on an irrelevant one (paras [54]–[55]).
Balancing competing imperatives: The first-instance judge faced a history of delay and an unhelpful pattern of late and partial information from a self-represented litigant. The court acknowledged that it was understandable for the judge to wish to conclude the proceedings and to be sceptical of “sick notes” lacking detail (paras [55]–[57]).
The decisive error: Despite those pressures, the judge failed to address the operative recommendation in Dr Bunn’s report (para [22]) that Mr Carson undergo a short period of stabilising treatment before participating (in person or remotely). Proceeding as if the report simply authorised immediate participation was a misreading that left out a material consideration (paras [58]–[59]).
Application of Bilta and aligned authorities: Properly weighed, credible medical evidence bearing on a party’s immediate fitness to participate must be taken seriously. Courts should consider whether a short adjournment would allow participation and thereby avoid unfairness (paras [52]–[53]). Here, the psychiatric advice expressly contemplated future capacity after a limited period of stabilisation; failure to consider that trajectory was dispositive on the adjournment issue.
Tailored appellate relief: The court limited intervention to the discrete monetary relief component (para [6] of the High Court order). The rescission, re-registration, possession timeline, and other consequential orders stood. This “surgical remittal” preserved finality where fairness was unimpaired and avoided re-opening settled factual findings (paras [60]–[63]).

Impact and Significance

This judgment makes several contributions to Northern Irish civil procedure and equitable remedies:

Consolidation of Bilta in Northern Ireland: The Court of Appeal confirms that the Bilta fairness framework for adjournments due to illness applies to party incapacity as well as witness unavailability, including at the remedies stage. Trial judges must directly engage with the operative portions of credible medical reports, particularly those recommending short-term steps before participation.
Practical standards for adjournment applications: The court distils a pragmatic evidential checklist (para [53]):
- Evidence of the illness/incapacity.
- Evidence that the person will likely be fit to attend at a later date (a forward-looking prognosis).
- The materiality of the person’s oral participation to the fairness of the hearing.
- Whether any prejudice to the other side can be compensated (e.g., costs).
Bare “sick notes,” delay, or non-engagement will count against the applicant; credible, time-limited medical recommendations will carry weight.
Article 6 ECHR as the compass: Fairness to both parties is paramount. If refusing an adjournment creates a real risk of unfairness, adjournment “should ordinarily be granted,” unless outweighed by uncompensable injustice to the other party. Administrative convenience is not determinative.
Surgical remittal: The appellate court demonstrates a restrained, targeted remedy—remitting only the impugned monetary relief aspect while allowing rescission, possession, and registration to proceed. This promotes proportionality, protects vested consequences of the liability judgment, and avoids unnecessary re-litigation.
Litigants in person and disability: The judgment recognises that reasonable adjustments (e.g., remote attendance) were offered and sufficed here; but it insists that where medical evidence prescribes pre-participation steps, the court must confront that evidence head-on before deciding to proceed.
Finality of fact-finding: The court’s refusal to permit a late amendment to reopen the 2022 liability judgment reaffirms Order 59 discipline and the high threshold for disturbing trial judges’ credibility findings (McGraddie). Parties must challenge promptly; credibility-based appeals require exceptional grounds.

Complex Concepts Explained

Equitable rescission: A remedy that unwinds a transaction entered into through misrepresentation, undue influence, or similar equitable wrongs. It aims to restore parties to their pre-contractual positions, often accompanied by monetary adjustments (accounts and enquiries) to avoid unjust enrichment.
Misrepresentation: A false statement of fact inducing a party to enter a contract. Here, the judge found Mr Carson represented the arrangement as a loan while knowing it was a sale at a significant undervalue, thereby vitiating consent.
Article 6 ECHR (Right to a fair trial): Guarantees a fair and public hearing within a reasonable time. In adjournment contexts, courts must ensure that proceeding without a party who is genuinely unfit would not render the hearing unfair.
Medical adjournment and “operative recommendation”: Courts must engage not only with a doctor’s ultimate conclusion (e.g., “fit to attend remotely”) but also any operative conditions or steps (e.g., “after stabilising treatment”) that qualify that conclusion. Ignoring those conditions risks unfairness.
Surgical remittal: An appellate technique remitting only the problematic slice of a case for rehearing, leaving unaffected orders intact. It preserves finality while correcting a discrete unfairness.
Tenants in common: A form of co-ownership where each co-owner holds a distinct share in the property. Upon rescission here, the Land Registry is directed to re-register the disputed folios in the names of Mr and Mrs McKee as tenants in common in equal shares.

Practical Guidance

For parties seeking a medical adjournment

Act early: make a formal application rather than simply not attending.
Provide a detailed medical report from an appropriate specialist, not just a brief “sick note.”
Ensure the report addresses:
- Diagnosis and how it affects participation.
- Why attendance (in person or remotely) is presently inappropriate.
- What interventions are required and the expected timeframe for fitness to participate.
- Any feasible adjustments (e.g., remote attendance, shorter sessions, screens).
Explain the materiality of your oral participation to the issues still in dispute.
Propose case-management mitigations (costs undertakings, timetables) to reduce prejudice to the other side.

For judges and practitioners

Engage expressly with the operative recommendations in medical reports (e.g., “stabilise first, then attend remotely”).
Record in reasons how Article 6 fairness informs the balancing of delay against the need for participation.
Assess whether a short adjournment would realistically secure participation and thus a fairer hearing.
Consider tailored directions (remote attendance, limited cross-examination, time-limited hearings) to accommodate genuine medical constraints.
Where only a discrete portion is affected, consider “surgical remittal” to preserve finality while correcting unfairness.

Contextual Note on the Substantive Equitable Issues

Although the appeal’s outcome turns on procedural fairness at the remedies stage, the first-instance liability findings provide a salient reminder of equity’s role in land transactions:

The transfer was procured by misrepresentation; Mrs McKee believed she was securing a loan to address an HMRC liability, not an outright sale of the land and riding school.
Rescission is appropriate to reverse such a transaction, particularly where a vulnerable party without independent advice is induced by a mischaracterised arrangement at an undervalue.
Post-rescission monetary adjustments are an accounting exercise: crediting improvements or payments made, netting against losses and expenses. It is this discrete accounting question that is remitted for determination by a different judge.

Conclusion

Carson v McKee establishes a clear procedural message for Northern Ireland: when deciding whether to adjourn on medical grounds, courts must squarely confront the operative substance of credible medical evidence. If a report advises short-term stabilisation before participation, that timing and conditionality cannot be ignored. Refusing an adjournment in such circumstances risks unfairness and constitutes a material error in the exercise of discretion.

At the same time, the judgment is a model of proportional appellate intervention. It preserves the integrity of the High Court’s fact-finding and equitable relief—rescission, re-registration, possession—while remitting only the discrete monetary relief issue for swift reconsideration. The decision thereby balances finality and fairness, embeds Bilta’s principles in Northern Irish practice, and provides pragmatic guidance to litigants, particularly those self-represented, about how to substantiate medical adjournment applications. Its practical effect is immediate: title corrections proceed and possession must be delivered, while a short, focussed rehearing will resolve monetary adjustments with the appellant now medically stabilised and able to participate.

Key Takeaways

Adjournment for medical reasons: fairness is paramount; engage with the operative medical recommendations and prognosis.
Applicants must provide detailed evidence of incapacity, materiality, prognosis, and mitigation of prejudice.
Refusal to adjourn may be overturned if the judge leaves out a material medical consideration.
Appellate remedy can be carefully tailored: discrete issues may be remitted without disturbing final orders elsewhere.
Challenges to first-instance credibility findings face a high bar; late attempts to expand appeals will be refused absent compelling justification.