Case Nos: IL-2023-000080 and IL-2024-000038 - [2025] EWHC 2561 (Ch)

In the Defence and Counterclaim to the RMG claim there is reliance on the Limitation Act 1980 on a narrow point which I discuss below. During the trial, on 3 April 2025, Mr Smith filed an application notice by which he sought to amend the Defence in the RMG action to include a much broader limitation defence: that the claim as a whole is barred by limitation for acts occurring before 17 March 2018. I dismissed the application.

RMG submitted that the application was nothing more than a device to get the trial postponed. No justification was given by Mr Smith for having failed to plead reliance on limitation either at the time the Defence was filed, or at least in good time before the trial. Until just before the trial the defendants were represented by solicitors and several successive counsel, all of whom had had every opportunity to advise that limitation provided a broad potential defence. Apparently, none of them did so advise. Limitation was undoubtedly considered by all or some of them because the narrow limitation point was pleaded.

If I had given permission to plead the broader limitation point RMG would have been forced to deal with it under the pressure of conducting a trial. RMG would have been entitled to consider whether there were grounds for relying on s.32(1) of the Limitation Act 1980, alleging deliberate concealment on the part of the defendants. RMG would have needed time to assess and if appropriate to formulate the point. It did not seem to me to be an argument beyond any reasonable contemplation and would have raised significant issues of fact, requiring further disclosure and evidence and forcing an adjournment of the trial.

Mr Smith said that he was amenable to an adjournment. That would have entailed not only a delay in reaching a result and the corresponding prejudice to the claimants, it would have significantly increased their costs. There was no way of telling when an adjourned trial could have been heard.

As to potential harm to the defendants, RMG submitted that having its claim restricted to acts done after 17 March 2018 would anyway not make much difference to the scale of potential damages which may be awarded against the defendants. That seemed to be correct.

On the balance of justice, the defendants’ loss of a potential defence raised so late in the day did not in my view outweigh the inevitable and substantial prejudice to the claimants if the defence was allowed. I therefore refused permission to make the amendment.

After the close of parties’ oral evidence, Mr Smith made another application, this time for an adjournment of closing submissions for 14 days. I refused the adjournment.

Due to the impossibility of knowing when all concerned could be reassembled, it is certain that the adjournment would have been longer than 14 days, probably much longer.

Mr Smith said that he wanted to find junior counsel who would be able to argue the defendants’ case in closing. He produced a letter dated 7 April 2025 from Victoria McEvedy of McEvedys Solicitors & Attorneys Ltd, his former solicitors, addressed to the leading and junior counsel at one time briefed to appear on behalf of the defendants at the trial. Junior counsel was apparently briefed on 1 March 2025, leading counsel not until 26 March 2025. The letter alleges that junior counsel had ceased work on 21 March 2025, that leading counsel had then agreed to step in, but on the first day of the trial he had withdrawn from the case. Both counsel were accused by Ms McEvedy of being in ‘fundamental breach’.

Mr Smith relied on the letter, as I understood it, to indicate that his lack of representation was no fault of his, rather the fault of his former counsel, and that therefore justice favoured the adjournment he was seeking.

An odd feature of the letter was that it came from Victoria McEvedy, seven days after Mr Smith had filed his Form N434 formally stating that Ms McEvedy’s firm no longer acted for the defendants.

Counsel for IDDQD told me that the letter was at best incomplete and possibly inaccurate. Apparently, at 3pm on Friday 28 March 2025 leading counsel then acting for the defendants emailed the claimants’ counsel saying that he was ready to serve a skeleton argument. On the evening of the same day, leading counsel for the defendants informed counsel for the claimants that he had been instructed by Ms McEvedy that he should not serve the skeleton he had prepared. This notwithstanding, late on Saturday 29 March 2025 Ms McEvedy served on the claimants the defendants’ draft skeletons I have seen. At about 9am on Sunday 30 March 2025 leading counsel for the defendants asked the claimants’ counsel to delete the skeletons because he had not authorised them. Later that day he followed this up by saying that the skeletons sent were drafted by junior counsel, not him. There was apparently no word from junior counsel.

The relevance of this confusing story so far as this judgment is concerned is that even if the charges made by Mr Smith against leading and junior counsel for the defendants contained in the letter of 7 April 2025 had any bearing on anything, I have no way of telling whether the charges are justified. They are anyway of minor relevance. More significant to my mind is the apparently turbulent relationship between Mr Smith and the successive counsel representing the defendants over recent years. I do not know whether the responsibility for that turbulence lies here or there, but I think it is fair for me to assume that the turnover must have involved decisions taken by Mr Smith. I also know that Mr Smith took the decision to appear in person for the defendants on or shortly before 31 March 2025.

When Mr Smith made his application to adjourn after the oral evidence was concluded he had apparently by this time changed his mind and decided that he wanted the assistance of counsel after all. In my view, Mr Smith found himself where he was largely because of his own earlier decisions. If I had granted an adjournment the prejudice to the claimants would have been self-evident and mirrors that which would have been caused by an adjournment of the trial. I therefore took the view that the balance of justice favoured the refusal of an adjournment.