HSBC Trustee (CI) Limited vs Rashad Almakhawi

This case involved an application to adjourn a trial in which HSBC Trustee (CI) Limited sought to set aside certain transactions made by Rashad Almakhawi, the first defendant, on the grounds of his health issues.

TLDR:

• The trial was set to begin on 22 January with a five-day estimate.
• The first defendant, Rashad Almakhawi, requested an adjournment due to severe health issues.
• The court granted the adjournment, emphasizing the importance of fairness and the defendant's right to a fair trial.
• The court ordered the first defendant to cover the costs incurred due to the adjournment.

The substantive hearing was scheduled to start on 22 January, but on 19 January, the court acceded to an application by the first defendant to adjourn the proceedings. The plaintiff, HSBC Trustee (CI) Limited, sought orders to set aside transactions made by Rashad Almakhawi, claiming these were intended to defeat creditors.

The plaintiff's case relied heavily on documentation, with Rashad Almakhawi being the only live witness concerning the transactions. The first defendant's application for adjournment was supported by a letter from Dr. Kenneth McKinnon Mitchell, a consultant psychiatrist, stating that Almakhawi was mentally and physically unfit to appear in court.

Dr. Mitchell's report, based on a video examination and corroborated by Almakhawi's daughter, indicated that the stress of court appearances had significantly impacted Almakhawi's health. The report estimated that Almakhawi would require six weeks of treatment to recover sufficiently to appear in court.

The first defendant argued that his presence was essential for a fair trial, as his credibility and the purpose behind the transactions were key issues. The plaintiff opposed the adjournment, citing previous instances of last-minute medical evidence and arguing that the trial could proceed with breaks and an interpreter.

The court considered several precedents, including Dick-Stock v GB Trustees Limited and Bilta (UK) Limited v Tradition Financial Services Limited, which emphasized the importance of fairness and the potential prejudice to the defendant if the trial proceeded without him.

Ultimately, the court granted the adjournment, acknowledging the unsatisfactory nature of the medical evidence but emphasizing the need for fairness. The court ordered that any future adjournment requests must be supported by detailed and testable medical evidence.

The court also ordered the first defendant to pay the costs incurred by the other parties due to the adjournment and re-preparation for the trial.

Legal representatives: Advocate W. A. F. Redgrave for the Plaintiff, Advocate. S. Steenson for the First Defendant, Advocate A. Kistler for the Second to Fifth Defendants.

Judicial Panel: The Bailiff

Case Citation Reference: [2024] JRC 123