BL-2022-000438 - [2025] EWHC 2212 (Ch)

General Observations on the Evidence

The oral witness evidence

The Claimant served witness statements for Mr Dunn, Mr Honey and Mr Timinis. The Defendant served witness statements for Mr Heyes, Mr Kazolides and Mr Stylianou. The Court was asked to pre-read all of those witness statements and did so. All of the above witnesses were timetabled to give oral evidence during the course of trial.

At the end of day 3 of trial, the Defendant’s counsel informed the Court that Mr Stylianou was “not coming”. The only explanation offered was that Mr Stylianou was out of the jurisdiction. This was not a wholly satisfactory explanation since Mr Timinis was also out of the jurisdiction but had given evidence by video link. Nonetheless, the Defendant did not seek permission for Mr Stylianou to give evidence by video link.

During the course of Mr Kazolides’ cross examination, the Claimant’s counsel showed parts of Mr Stylianou’s witness statement to Mr Kazolides and asked him questions about that particular evidence.

I asked the parties to explain to me the status of Mr Stylianou’s evidence in their closing submissions. The Defendant argues that under CPR 32.5(5) if a party who has served a witness statement does not call the witness or put in a hearsay statement then the other party may put the witness statement in as hearsay evidence. He notes that the Claimant’s counsel took Mr Kazolides to Mr Stylianou’s statement in cross examination and says that this had the effect of putting the statement into evidence. He says that the effect of this is that the whole statement, not just the passages referred to, are in evidence as a hearsay statement.

In support of that proposition, the Defendant cites the White Book at §32.5.3 and Property Alliance Group Ltd v Royal Bank of Scotland Plc [2018] EWCA Civ 355; [2018] 1 W.L.R. 3529. For the Property Alliance Group case, the Defendant does not cite a particular paragraph but I note that the White Book reference given refers to the paragraph 173 of that case.

I do not agree with the submission that the Claimant is deemed to have put Mr Stylianou’s witness statement into evidence as a hearsay statement as a result of the Claimant’s cross-examination of Mr Kazolides on parts of Mr Stylianou’s statement:

The statement is nonetheless before the Court in an agreed bundle (see CPR PD32/27.2) and is admissible as to evidence of its contents.

The Defendant accepts that it is a matter for the Court as to the weight that should be placed on that evidence, in the absence of it being tested in cross-examination. I read Mr Stylianou’s statement as part of my pre-reading. I decline to place weight on it in circumstances where (a) the Court has not had the benefit of Mr Stylianou’s oral testimony or any cross-examination; (b) the Court has had the benefit of evidence from other key contemporaneous witnesses; (c) many of the events in question took place a long time ago and it is inevitable that recollections will fade (see the next section below); and (d) there are other sources of evidence including a body of emails and other correspondence which provide insight into the relevant events.

I note that the Claimant contends that the Court should draw an adverse inference against the Defendant for failing to call Mr Stylianou, although the Claimant was not able to specify with sufficient particularity the factual issues on which such an inference should be drawn. I decline to draw such an inference in circumstances where there was an extensive documentary record before the Court, the Court had the benefit of the testimony of numerous other witnesses and much of the case turned on events after Mr Stylianou had been removed as a director and when his involvement was substantially reduced.