Claim No: IP-2021-000080 - [2024] EWHC 396 (IPEC)

The Defendants sought permission to reply to two paragraphs of the second Witness Statement of Mr Giles Cadman: paragraph 7 and paragraph 18. Mr Harris’ skeleton argument said very little about this application. Mr Reed said rather more, noting that inter-partes correspondence had not greatly clarified the Defendants’ concerns. He also referred to witness evidence filed by Ms Steggles of Howes Percival to which, he said, no meaningful response had been received and further noted that compromise language on one aspect of Mr Cadman’s evidence had been proposed by the Claimants, but no response had been received to that either.

The application in respect of paragraph 18 was not pursued at the hearing.

Given timing constraints and the lack of clarity about the extent of the evidence for which permission was sought, I asked the Defendants to provide further information, including details of the evidence they wished to adduce. Dehns did so on 23 January 2024. Mr Reed filed supplemental written submissions on 24 January.

It is regrettable that this issue had not been properly explained in advance. One purpose of inter-solicitor correspondence and witness evidence in this jurisdiction is for the parties to clarify and resolve issues where possible so that when the Court needs to intervene only real points of contention remain to be resolved. The Defendants fell short of that ideal in respect of this application.

Following the post-hearing exchanges, I understand that the Defendants’ position is that paragraph 7 of Mr Cadman’s second witness statement misrepresented the purpose of a visit made by Mr Land and Mr Gowland to the British Virgin Islands in the summer of 2012. The paragraph is also said to contradict other statements made by Mr Cadman or materials already in evidence. The Defendants seek permission to serve a short witness statement and to exhibit a copy of a report of the 2012 visit.

Mr Reed submits that the statements objected to form part only of the background and do not go to any of the issues to be determined at trial. In view of that position, the Claimants offered to remove certain words from Mr Cadman’s statement to avoid any potential concern that they misrepresent the purpose of the 2012 trip.

Issues and evidence should where possible be simple, and limited to what is necessary. The proportionate and cost-effective way of dealing with the alleged misrepresentation in paragraph 7 is to order it to be removed in line with the proposal made in paragraph 12(4)(a) of Mr Reed’s written submissions after the hearing.

The Defendants seek permission in respect of two alleged contradictions arising from Mr Cadman’s comments in paragraph 7. These are: (i) said to contradict subsequent comments made by Mr Cadman about the capabilities of Mr Land and Mr Gowland; and (ii) said to contradict section 7 of Mr Land’s Settlement Agreement.

Mr Reed submitted that: neither is a contradiction; neither goes to a material issue; and the Defendants have not explained what evidence they wish to adduce in reply.

To grant permission for reply evidence on (i) above would simply lead to greater costs and would not assist the trial judge. This is background contextual material which provides a subjective recollection of Mr Cadman’s view at the time in question. To the extent that it appears to be inconsistent with later material, the trial judge will be able to view the statements in context and assess the weight to be given to them. The evidence from both parties already goes beyond what is required to resolve issues of fact at trial. I will not permit further evidence unless it is clearly necessary.

The second alleged inconsistency is said to arise between a comment in paragraph 7 of Mr Cadman’s statement and the contents of the Settlement Agreement. The Settlement Agreement is already available. The alleged inconsistency can be addressed during trial if it is sufficiently relevant to the issues. In the absence of a draft witness statement or outline of evidence, it is difficult to understand what further factual evidence might usefully add.

Mr Reed suggested a form of words that might be included in an order permitting limited evidence. I do not know if the Defendants believe that this suggestion would help. Given the general position that evidence should be likely to assist the trial judge, I will not permit further evidence in reply to paragraph 7 of Mr Cadman’s Second Witness Statement and the Defendants’ application is dismissed.