J90PE914 and K00LU633 - [2025] EWHC 2076 (KB)

Three general reasons for the delay in Ms Saunders giving evidence are relied upon by the first defendant in order that a costs order be made against Ms Saunders: the time she took to give her answers; the need to put every point to Ms Saunders in order to avoid any potential future argument that something had not been put to the claimants; and the time taken to take instructions or give advice, during the course of Ms Saunders’ evidence.

The time taken by Ms Saunders to give her answers, and her desire to explain to Chancery counsel just how difficult the construction of a lease can be, undoubtedly increased the time it took for the evidence to be given. In addition, there were a number of times when Ms Saunders would not answer the question put to her, but another question giving the same answer she had already given. I generally do not like witnesses to be interrupted when they are giving their evidence and, as counsel for the claimants acknowledges in her written submissions on this point that the “court was entirely consistent in giving all witnesses the opportunity to give full answers.” While I did eventually intervene in the cross examination in order to ensure that Ms Saunders focussed on answering the question put, I initially allowed her the latitude to answer as she wished - not least because she has shown that she can perceive unfairness against herself (even where that is not the case) and I wanted to ensure that even she could not suggest that she had been prohibited from giving her evidence as she wished.

I can fully understand the position of counsel for the first defendant that he needed to put every point to Ms Saunders. Ms Saunders is the driving force behind this litigation and she has a very clear view as to her own interpretation of the documents. She has shown by her actions that a failure to agree with her view is not something she can accept. Her own counsel needed to obtain her written agreement at the end of each witness being cross examined to ensure that she was satisfied that the KC she had instructed had taken every point she wished to have taken. I was willing to accommodate that, in the same way that I was willing to accommodate the cross-examination of Ms Saunders dealing with all points, even if some will ultimately be determined upon a construction of the lease. It would not have been fair for the first defendant to have been prohibited from asking a line of questions, for the claimants to then contend that the view expressed by Ms Saunders had not been challenged in court. While counsel for the claimants had sensibly conceded that construction was a matter for the court, given the way in which this case has been litigated and the way that Ms Saunders’ own counsel had to take instructions both during the cross examination and, as I have set out, obtain written acknowledgment from her lay client that she was satisfied with the cross examination, it was appropriate for all of Ms Saunders’ evidence to be explored. It was not possible to know that Ms Saunders may have disagreed with the stance her counsel had taken. As her counsel has acknowledged, Ms Saunders cannot now complain that her views were not fully aired and explored. The time that took may be something that will be relevant to determinations on costs at the end of the trial, but it is not something I can properly take a view upon at this stage.

The third point raised on behalf of the first defendant is with respect to the time “wasted” by reason of Ms Saunders’ own behaviour: both in giving answers while being cross examined, which gave counsel concern that she might be professionally embarrassed, and the time that the court had to spend time resolving issues created by Ms Saunders’ own conduct. I will come to the detail of those matters in due course, but in my judgment those incidents clearly wasted court time, delayed progress of the case and the costs consequences should properly be dealt with now.

With respect to the other matters that have been raised in the written submissions, it is not appropriate for the claimants to be held responsible for the fact that the conditions in court were unacceptably hot such that it became impossible to continue with the trial. That is a matter I have raised with those who are obliged to provide workable court facilities and continues to be an issue. Similarly, the claimants cannot be held responsible for a technical glitch. In any event, the fact that the court sat both early and late in order to make best use of court time cancelled out any delays caused by the inadequacies of the court and the difficulties with equipment.