Claim No: IP-2022-000053 - [2025] EWHC 1827 (IPEC)

As noted above, BSH did not appear at trial and was not represented. BSH had been represented at the Case Management Conference (CMC) before me by its Argentinian legal representative with my permission. I indicated at the CMC that BSH should not expect that permission to be extended to the trial. BSH thereafter obtained legal representation in the United Kingdom. That legal representation persisted until shortly before the trial, when BSH’s lawyers (who were also representing GM Drinks and Mr Patch) made an application (which I granted) to come off the record because their invoices had not been paid. The result was that I had before me at trial on behalf of BHS:

Three preliminary issues therefore needed to be dealt with at the start of the hearing.

First, I needed to decide whether to adjourn the trial based on BSH’s non-appearance. I did not adjourn the trial for the reasons I gave at the time.

Second, I needed to decide whether to strike out BSH’s Defence under CPR 39.3(1). I was asked by the Claimants not to do so. Rather, given that the trial needed to proceed against GM Drinks and Mr Patch, counsel for the Claimants asked me to proceed against BSH as well, reserving a contingent position to her closing submissions to request strike out of BHS’s Defence at that time. Whilst that will not be appropriate in every case, I was content that it was appropriate in this case. Ultimately, counsel for the Claimants made no such request in her closing submissions. Thus, the trial proceeded as against BSH, rather than by striking out BSH’s Defence.

Third, I needed to decide what, if any, weight to give to BSH’s evidence. The issue arose in the recent judgment of Mr Sean O’Sullivan KC sitting as a Deputy High Court Judge in AMNS Middle East FZE v LIQS Pte Ltd [2025] EWHC 150 (Comm) (see particularly paragraphs 32 and 33). In that case, the Judge declined to read the witness statements of the non-attending defendant on the basis that the witnesses had not been called, and no application had been made to admit the witness statements under a hearsay notice, following the Court of Appeal’s judgment in Williams v Hinton [2012] CP Rep 3 (2011) per Gross LJ at [43]. Whilst I had already read Mr Degese’s witness statement in preparation for the hearing, I have adopted the same position here in relation to it – it is not evidence in the proceedings, and has no weight.

A more complex issue arises in relation to BSH’s Defence itself. In the IPEC, a Defence stands as evidence in chief in the proceedings, and is submitted over a statement of truth. IPEC cases can be tried on the basis of the pleadings alone, without permission being granted for any further evidence.

BSH’s Defence was signed by Leonardo Francisco Spadone, President of BSH. Mr Spadone was not called to confirm the Defence. Thus, I was faced with counsel for the Claimants asking me not to strike out the pleading aspects of the Defence because the claimants wished to rely on aspects of them, but asking me to ignore the evidentiary aspects of the Defence. I was told that there is no IPEC decision on how to deal with the issue, although it must arise regularly, with the difficulty being that there will not usually be a bright line between what is “evidence” in a Defence, and what is pleading. However, I do not need to decide the issue in this case, because very little, if anything, in the Defence is evidentiary in nature. Further, GM Drinks and Mr Patch were present at trial, and had filed a Defence in relevantly identical terms. Mr Patch had signed the Defence on his own behalf, and on behalf of GM Drinks. He was cross-examined. Therefore, the “evidentiary” contents (if any) of the Defences were before me in relation to Mr Patch and GM Drinks, and counsel for the Claimants did not take any point that the result should be different as between BSH and GM Drinks/Mr Patch on the basis of any “evidence” in the Defence that could only be relevant to GM Drinks/Mr Patch. Having (quite rightly) brought the issue to my attention, counsel for the Claimants conceded that it did not affect this case. Whilst it does seem to me that a non-attending party cannot have the benefit of any evidence in its pleadings (in the same way that it cannot have the benefit of any witness statements which it does not turn up to defend), that is not an issue I need to decide today.