[2025] EWHC 1722 (IPEC)

On 3 February 2025, following the service of evidence in reply, the Claimant’s solicitors informed the Defendants’ solicitors that there were 23 extra documents (“the Application Documents”) which they described as ‘disclosure documents’ and which they intended to include in the trial bundle. These were documents relating to the Defendants’ business, directors and connected companies, seemingly sourced from the internet. By the CMC Order, the Claimant had been ordered to give disclosure in relation to two points from the List of Issues, namely evidence of instances of actual confusion/misrepresentation, and evidence of unfair advantage, as well as to disclose adverse documents. The Defendants objected that the Application Documents were not within the scope of the issues on which the Claimant was to give disclosure and that it seemed to be trying to circumvent CPR 63.23. The correspondence showed that the Claimant had no intention of applying to adduce the Application Documents, and so the Defendants filed an application on 10 April 2025 for an order that the documents should not be permitted to be adduced or be included in the trial bundle. That application was heard at the outset of the trial. The Claimant did not file its own application to adduce those documents.

In the witness statement of the Claimant's solicitor Mr Grist, served in response to the application, it was suggested that the Application Documents should be admitted because:

In addition, on Monday 12 May, with the trial due to start on the Wednesday, the Claimant served the Defendants with a small bundle of five further documents (“the CXX Documents”), which it proposed to use for cross-examination. The Defendants objected to those too, on the same basis as the Application Documents, as well as in light of the CMC Order made by Ms Treacy which provided that “Any party intending to rely on a cross-examination bundle shall give the relevant witness adequate notice of the bundle and must at the same time inform the court and the other parties (unless the court gives permission not to notify the other parties) of the exceptional reasons which are said to justify the late introduction of new documents into the case.” The Claimant’s solicitors’ covering letter of 12 May described the CXX Documents as “relevant, proportionate and necessary” but did not, on its face, identify any exceptional reason to adduce them.

The Defendants said that the reasons given by the Claimant to seek to introduce these documents into the trial do not satisfy the rules of IPEC:

The IPEC Guide says:

“The CMC is a particularly important part of IPEC procedure. No material may be filed in the case by way of evidence, disclosure or written submissions unless permission is given by the judge. The first and last opportunity to obtain such permission is likely to be at the CMC. Save in exceptional circumstances the court will not permit a party to submit material in addition to that ordered at the CMC (Part 63 rule 23(2)).”

Mr Roberts KC did not seek to persuade me that the Application Documents fell within the disclosure which the Claimant had been ordered to give, nor, sensibly, did he pursue the adverse documents argument. Instead, he told me that the documents were there to “enhance the accuracy” of the Defendants’ witnesses’ testimony and mainly went to the relationship between the Defendants and certain other companies. However, I was not clear how that reflected any of the Issues I need to decide, nor was I persuaded that the Claimant’s desire to cross-examine on the points Mr. Roberts had identified amounted to an exceptional reason to let in the Additional Documents at this late stage. The mere fact that this was an unusual IPEC case in providing for a three-day trial did not, as Mr Roberts contended, make it exceptional in any way relevant to the application of the rules set out above. I took the view that nothing that Mr. Roberts had said amounted to making a case that there were exceptional reasons to admit any of the Application Documents. I excluded all of them.

Similar points were made in relation to certain of the CXX Documents, and I took the same view about those documents, and excluded them from the trial. However, Mr Roberts KC explained that two of the CXX documents related to different points. The first was said to show the manner in which the First Defendant’s business was presented to the public, in particular as to whether it was presented as offering a payment function. Mr Roberts told me that there were some documents already in the bundle which described the First Defendant’s business in similar terms and took me to them. I considered that these CXX Documents related to what seemed to me, at the outset of the trial, to be very central points in the proceedings, namely, what was the full extent of the Defendants' offering. The second of those documents consisted of a timeline, and again that struck me as an important point in establishing the dates when the Defendants' various activities commenced. It seemed to me that the two CXX Documents potentially went further than the existing documents on these points. I took the view that cross-examination of the Defendants’ witnesses could proceed without these two documents but might be aided by these documents. Whilst I had some doubts as to whether this really amounted to an exceptional reason to allow either document to be used in cross-examination, on balance I decided to permit the Claimant to use those two documents (together only 3 pages) in cross-examination. As it turned out, in my judgment the two documents added very little, if anything, to the case or to the cross-examination by Mr Roberts KC.