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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  1 Costs LR 103,  EWCA Civ 101
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (MERCANTILE COURT)
BIRMINGHAM DISTRICT REGISTRY
HHJ Simon Brown QC
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE SINGH
| SANJAY SOLANKI
|- and -
|(1) INTERCITY TECHNOLOGY LIMITED (FORMERLY INTERCITY TELECOM LIMITED)
(2) GUIDINGLIGHT FINANCE LIMITED (FORMERLY MODERN OPERATIONS LIMITED)
Simon Pritchard Esq (instructed by Shakespeare Martineau LLP) for the Respondents
Hearing dates : 4 and 5 October 2017
Crown Copyright ©
Lady Justice Gloster:
i) application notice A3/2015/1224 – against the judge's refusal to adjourn the trial on health grounds ("the adjournment appeal");
ii) application notices A3/2015/1222 and A3/2016/1843 – against the judge's actual judgment dated 27 February 2015 and against his refusal on 11 March 2017 to set aside judgment under CPR rule 39.3 ("the set aside appeal"); these appeals were dealt with effectively as one because the appellant was seeking a retrial, rather than a variation of the amount of the judgment;
iii) application notice A3/2015/2080 – against the judge's decision in his order dated 15 June 2015 summarily to assess costs of the committal proceedings in the sum of £83,583.73 ("the costs appeal").
Brief factual summary and procedural history
i) the Legal Aid order to be extended to the substantive trial (on the basis that the sanction for contempt would depend upon the findings made during the trial). The appellant informed the court that his retained solicitors (Cartwright King) were no longer able to continue acting for him;
ii) an adjournment of one month in the interests of justice to allow a fair hearing and 'to allow reasonable time for counsel for preparation'; and
iii) permission to rely upon 11 further witness statements; the appellant stated that the
'… attached 11 witness statements have already been served on the Claimants' solicitors on 9 February 2015. The Claimants have made a specific allegation that the appellant was specifically targeting a certain set of customers and the new witness statements clearly rebut these allegations and they are therefore highly relevant to these proceedings and need to be relied upon'.
This issue was expanded upon in his witness statement filed in support of the application. The 9 February date was material because the case management orders required the respondents to serve any statements of fact by 4pm on that day. Thus, the appellant had already filed his evidence by the very date by which the respondents were directed to serve their evidence.
"clarification only: the appellant already has legal aid for contempt proceedings where only judgment stands to be delivered at conclusion of trial. The application for extension of legal aid is refused as is the application for an adjournment."
'The fact that I as a lay individual, have been forced to deal with these Court proceedings predominantly by myself since May 2014, compounded by the fact I have not yet received any written confirmation to my urgent application made in the Court over a week ago, has led to further significant impact on my mental and physical health.
Unfortunately, these Court proceedings have naturally put a huge amount of strain and pressure on me as an individual, and these proceedings have now taken an unbearable toll on my overall wellbeing and reached a point where matters have become completely intolerable.
As a result of receiving no written confirmation to my urgent application made last week, my stress and anxiety levels have increased to the point where I was forced to make an urgent appointment with my GP this week…. Further assessments were carried out with regard to my mental state of mind and my GP has advised me that I am not mentally fit to stand trial next week. My GP is on leave from 19 to 20 February, however, I have been assured by the surgery that a suitable letter from my GP and a report providing confirmation on my current mental state of mind, and the fact I am not fit to stand trial next week, will be made available to me by 4:00pm Monday 23 February 2015. As soon as I have this supporting evidence I will forward it to the Court no later than 4:00pm Monday 23 February 2015…
In any event, taking all the above into account, please accept this email communication as confirmation that I am not in a position to attend Court on 24 February 2015 for a 5 day trial based on the professional advice received from my GP. I therefore respectfully ask the Court to adjourn the matter for at least 6-8 weeks to allow me reasonable time to recover from my illness and subsequently allow me reasonable time to prepare for the trial…' (My emphasis.)
i) that he had been signed off as being not fit for work by his GP since March 2014; and
'… my overall mental and physical health has substantially deteriorated over time which has been illustrated by evidence in the form of a letter and report from my GP'.
He also attached a copy of Article 6 ECHR. However, he refused to provide a copy of the medical evidence to the respondents on grounds of confidentiality.
"The applications have been refused on paper. Any further representation to adjourn the trial must be made in court at 10:30am on 24th February 2015 upon notice to the Respondents and the court supported by psychiatric evidence and signed witness statement of truth by the Applicant. "
However, the judge did not give any reasons for the refusal. In particular, he did not indicate that the medical evidence provided in support was deficient, or that further information was required from the GP.
'I am unable to attend Court in person on 24 February 2015 due to ill health, which is supported by a medical report in the form of a letter by my GP. My ill health and poor mental state of mind prevents me from travelling from Leicester to Birmingham and to represent myself in Court without professional legal representation which I believe I have a right to under my Article 6 rights'.
"In view of the above I have concerns as to whether he is medically fit to be able to represent himself in court at the present time".
In an email to the court on the morning of the trial, the appellant, in response to the respondents' solicitors request, agreed that the court should show a copy of the medical records to the respondents' counsel at the start of the hearing. However, counsel for the respondents declined the invitation as he did not wish to see the letter if it were not made available to his solicitors and clients.
"Well, there has been a wilful failure to attend, I am satisfied, because even by the latest email it is perfectly apparent that he [the appellant] is fully cognizant of the whole case and he should be here at court, that these are attempts to avoid coming to court. The Defence itself, which is a statement of defence which goes to about sort of 27 pages of 88 paragraphs are bits of purported sort of evidence does not in any view amount to a proper defence of the claim being made and it seems quite proper that the Defence in his absence should be struck out."
"to cut a long story short… We have during the lunch interval been able to come up with a figure which we think would be an appropriate figure which we would invite the court to award as damages and that is based on the clients who we see most strongly from the bundle [the appellant] had dealings with and as a result either their business has been lost entirely by the [respondents] or the companies are no longer engaging as they would normally do with the [respondents] and there are strong suspicions that the business will be lost…
So ultimately that is the figure we are going to ask you to award and it comes really as a compensation for breach of contract."
Having emphasised the speculative nature of the quantification exercise, Mr Pritchard came up with a figure of £290,000 to reflect the loss of business which he claimed that the respondents had actually suffered as a result of the appellant's breach of contract. He took the judge through each figure making up that total, allegedly giving credit for business which might not have been lost; see e.g. pages 21-22 of the trial transcript.
"38. The best evidence available emanates from the known activities of the Defendants on the USB memory stick and of Mr Sharp, the Finance Director and a Chartered Accountant of the Claimants in his second witness statement dated 9th February 2015 and the attached confidential spreadsheet.
39. Mr Sharp's second witness statement explains that since December 2013 the Claimants have lost customers that represent revenue of about £2.7 million (£1 million profit).
40. In opening however, Counsel for the Claimants restricted their claim to those contracts where there is strong evidence from the memory sticks that Mr Solanki interfered with at least the following clients and so probably caused their loss of accounts:
Zebra Technologies Europe Limited (£124,795 lost gross profit)
J Coffey (£24,124 lost gross profit)
Kevin Cash (£12,575 lost gross profit)
John Shepherd (£4,442)
Pertemps People Development Grp (£56,394)
Bethmar Limited (£19, 357)
In addition, the Claimants have lost business with 4C and EvoEnergy because Mr Solanki diverted (or attempted to divert) that business away from Intercity:
4C (£23,950 lost gross profit)
EvoEnergy (£24,372 lost gross profit
41. I accept Mr Sharp's evidence. In my judgment, there is clear evidence of unlawful interference with these customers by Mr Solanki that has probably caused the loss of these accounts. Accordingly, there will be judgment for the claimant for compensatory damages in the sum of £290,009.
42. The breaches of the Claimants' database rights have been very serious in this case. Their confidential records were furtively ransacked by their employee for his own gain whilst he was still employed by them with a considerable annual remuneration of around £100,000. SMEs whose existence, (and the livelihood of their employees,) that depends on precious and hard worked for customer information, requires deterrent legal protection from such nefarious conduct. ESI is easily manipulated but, unlike paper, not easily eradicated. The Claimants do not seek additional damages in this case, but, if they had, then the court would have been minded to award a further 10% to the compensatory award given.
43. The total award of damages is £290,009."
i) a statement dated 6 March 2015 from Stephen King, the CEO of Pertemps People Development Group, who stated that the information relating to his company at paragraph 40 of the judgment was 'erroneous' and that he still had a live account with the respondents;
ii) a statement dated 6 March 2015 from Helen Aitchison, an employee of John Shepherd, which responded to paragraphs 39-41 of the judgment, and denied that the appellant was responsible for the alleged loss of the mobile account which still remained with the respondents; she offered to supply a copy of the billing statements from the respondents '… as they clearly evidence our account remains with them.';
iii) a statement dated 9 March 2015 from Alan Barrett, an employee of BethMar Ltd, which also responded to paragraph 40 of the judgment; he expressed concern about its conclusions and reiterated the fact that he had provided a sworn affidavit already confirming that the appellant had not interfered with his mobile and other accounts with the respondents; he criticised the judgment as being 'clearly fallacious…' on the grounds that his company's account remained with the respondents and the former was being billed by the latter for mobile and hosted services each month; he also offered to provide copies of invoices.
i) on 13 April 2015, the appellant applied to vacate and stay the contempt sanctions hearing listed for 23 April 2015 on the grounds of his application for permission to appeal the judgment to this court, his ongoing medical condition and his "poor financial circumstances" which he said prevented his travelling from Leicester to Birmingham;
ii) on 16 April 2015, HHJ Simon Brown QC refused that application;
iii) on 22 April 2015, the appellant requested the vacation of the sanctions hearing on the grounds that his father had died that day;
iv) on 23 April 2015, the first hearing of the sanctions hearing was adjourned to 15 June 2015 at the Royal Courts of Justice in London, as the appellant was unable to attend because his father had died the day before; the court ordered that the appellant should produce documents relating to his means for the purposes of considering what sanction to impose for his admitted contempt;
v) on 2 June 2015, the appellant complied with the order and provided the relevant documents to the respondents' solicitors;
vi) on 15 June 2015, the second hearing of the sanctions hearing took place at the RCJ in London before HHJ Simon Brown QC; he fined the appellant £2,500 and awarded the respondents their costs of the contempt applications assessed in the sum of £69,933.72 stated to be "in accordance with the order dated 13 February 2015", and £13,650 costs assessed in respect of the hearing on 15 June 2013,
The adjournment appeal and the set aside appeal
Grounds of appeal - adjournment appeal and set aside appeal
i) under the adjournment appeal the grounds were that the judge had erred in principle by dismissing the appellant's application dated 24 February 2015 and in so doing the appellant's Article 6 ECHR rights were breached in that:
a) he was not afforded a fair trial
b) he was prevented from calling witnesses of fact to rebut the allegations made against him;
c) he was not afforded adequate time and facilities for the preparation of his defence; and
d) he was prevented from having legal representation at his trial. (This last ground was not pursued on the appeal.)
ii) Under the set aside appeal the grounds were that, in all the circumstances, both at the time of the trial itself, and as at the date of the set-aside application, and as a matter of principle, the judge was wrong in refusing to set aside (in whole or in part) the judgment under CPR rule 39.3 (5). The appeal was not confined to new evidence being adduced after judgment (in respect of which the appellant accepted that the principles set out in Ladd v Marshall applied – as considered by Hale LJ in Hertfordshire Investments Ltd v Bubb  1 WLR 2318, at 2324 and 2125).
The respondents' notices
Discussion and determination - adjournment appeal and the set aside appeal
"20 Before I consider these points in turn, I would make some general observations on adjournments. Every tribunal or court has a discretion to grant an adjournment, and the exercise of such a discretion, going as it does to the management of a case, is one with which an appellate body is slow to interfere and can only interfere on limited grounds, as has repeatedly been recognised. But one recognised ground for interference is where the tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account:. … Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment.
21 A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.
22 If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved."
Helpful guidance is also found in Andreou v The Lord Chancellor's Department  IRLR 728.
"18 Our approach to this question is that the test to be applied to a decision on the adjournment of proceedings is not whether it lay within the broad band of judicial discretion but whether, in the judgment of the appellate court, it was unfair. In Gillies v Secretary of State for Work and Pensions  UKHL 2, Lord Hope said (at section 6) '[T]he question whether a tribunal . . . was acting in breach of the principles of natural justice is essentially a question of law.' As Carnwath LJ said in AA (Uganda) v Secretary of State for the Home Department  EWCA Civ 579, section 50, anything less would be a departure from the appellate court's constitutional responsibility. This 'non-Wednesbury' approach, we would note, has a pedigree at least as longstanding as the decision of the divisional court in R v S W London SBAT, ex parte Bullen (1976) 120 Sol Jo 437; see also R v Panel on Takeovers, ex parte Guinness plc  1 QB 146, 178G-H per Lord Donaldson (who had been a party to the Bullen decision) and 184C-E per Lloyd LJ. It also conforms with the jurisprudence of the European Court of Human Rights under Article 6 of the Convention – for we accept without demur that what was engaged by the successive applications for an adjournment was the Defendant's right both at common law and under the ECHR to a fair trial.
19 But, as Lord Hope went on in his next sentence in Gillies to point out, the appellate judgment 'requires a correct application of the legal test to the decided facts . . . .' Thus the judgment arrived at first instance is not eclipsed or marginalised on appeal. What the appellate court is concerned with is what was fair in the circumstances identified and evaluated by the judge. In the present case, this is an important element.
20 We would add that the question whether a procedural decision was fair does not involve a premise that in any given forensic situation only one outcome is ever fair. Without reverting to the notion of a broad discretionary highway one can recognise that there may be more than one genuinely fair solution to a difficulty. As Lord Widgery CJ indicated in Bullen, it is where it can say with confidence that the course taken was not fair that an appellate or reviewing court should intervene. Put another way, the question is whether the decision was a fair one, not whether it was 'the' fair one."
Subsequent cases in this court have followed the approach of Sedley LJ in Terluk.
"Failure to attend the trial"
(1) The court may proceed with a trial in the absence of a party but –
(a) if no party attends the trial, it may strike out the whole of the proceedings;(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).
(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.
(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.
(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –
(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;(b) had a good reason for not attending the trial; and(c) has a reasonable prospect of success at the trial."
"24. First, the application to appeal Judge Ellis's refusal under CPR 39.3 to set aside the Order. An application to set aside judgment given in the applicant's absence is now subject to clear rules. As was made clear by Simon Brown LJ in Regency Rolls Ltd v Carnall  EWCA Civ 379, the court no longer has a broad discretion whether to grant such an application: all three of the conditions listed in CPR 39.3(5) must be satisfied before it can be invoked to enable the court to set aside an order. So, if the application is not made promptly, or if the applicant had no good reason for being absent from the original hearing, or if the applicant would have no substantive case at a retrial, the application to set aside must be refused.
25. On the other hand, if each of those three hurdles is crossed, it seems to me that it would be a very exceptional case where the court did not set aside the order. It is a fundamental principle of any civilised legal system, enshrined in the common law and in article 6 of the Convention for the protection of human rights and fundamental freedoms that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representatives are present and are heard. If the case is disposed of in the absence of a party, and the party (i) has not attended for good reasons, (ii) has an arguable case on the merits, and (iii) has applied to set aside promptly, it would require very unusual circumstances indeed before the court would not set aside the order.
26. The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant's conduct; similarly, the court should not pre-judge the applicant's case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.
27 An appeal against a judge's decision under CPR r 39.3 to refuse (or indeed to allow) an application to set aside a judgment does not, at least normally, involve challenging a discretion. However, an appellate court should be slow to overturn a decision of this nature, unless satisfied that the judge went wrong in principle. The decision will often involve making findings of fact, and, while the findings will normally be based on written evidence only, an appellate court should never lose sight of the principle that the first instance tribunal is the primary finder of fact. In so far as the decision involves a balancing exercise, an appellate court should pay proper respect to the judge's views. Another way of making essentially the same point is that the appellate court normally has a reviewing, as opposed to a rehearing, function in such a case, and it can therefore only interfere if satisfied that the judge was wrong."
"24. I recognise that an appellate court should be slow to interfere with a decision of a lower court on the question of whether a litigant had a good reason for not attending a trial. Such a decision is a fact-sensitive evaluation made in the light of all the circumstances. It is the kind of decision that an appellate court will only strike down for reasons analogous to those which justify interfering with an exercise of discretion. But in making that assessment, the judge must have regard to the guidance given in Pereira and Estate Acquisition and the need, when applying rule 39.3(5)(b), to seek to give effect to the overriding objective of dealing with cases "justly" and to comply with article 6 of the European Convention on Human Rights ("the Convention"). This is particularly important where, as in the present case, the party has a reasonable prospect of success at the trial. In such a case, the court should usually not adopt a very rigorous approach to the question whether the litigant has shown a good reason for not attending.
25. At first sight, it might appear that there is a conflict between the Pereira guidance (which is similar to that given in Estate Acquisition) on the one hand and the guidance given in Levy on the other hand. Nothing that I say in this judgment should be interpreted as casting doubt on the guidance given in Levy. Generally, the court should adopt a rigorous approach to scrutinising the evidence adduced in support of an application for an adjournment on the grounds that a party or witness is unfit on medical grounds to attend the trial. In Denton v TH White Ltd  EWCA Civ 906,  1 WLR 3926 at para 89, Jackson LJ emphasised the general undesirability of adjourning trials in the context of applications under CPR 3.9. I entirely agree with what he said.
26. But I accept the submission of Mr Burgess that there is a material distinction between an application under rule 39.3(3) and an application for an adjournment of a trial. If the court refuses an adjournment, there will usually be a trial and a decision on the merits, although the unsuccessful applicant will be at a disadvantage, possibly a huge disadvantage, by reason of the absence of the witness or the party himself. Despite their absence and depending on the circumstances, it may still be possible for the disadvantaged claimant to prove the claim or the disadvantaged defendant to resist it. I accept that, in some cases, the refusal of an adjournment will almost inevitably lead to the unsuccessful applicant losing at trial. That is a factor that must be borne in mind when the court exercises its discretion in deciding whether or not to grant an adjournment. But if the application to set aside a judgment under rule 39.3(3) fails, the applicant will have had no opportunity whatsoever to have an adjudication by the court on the merits. This difference between an application under rule 39.3(3) and an application for an adjournment of the trial is important. Although it has not been articulated as the justification for generally adopting a more draconian approach to an application for an adjournment than to an application under rule 39.3(5), in my view it does justify such a distinction. It follows that the judge should have applied the Pereira guidance rather than the Levy guidance in so far as there is a difference between the two.
27. Although the judge correctly referred to the Pereira guidance, it seems to me that he lost sight of it when he came to consider whether there was a good reason for Mr Robinson not attending on 30 June. He made no mention of it when he came at para 21 to make his overall assessment of whether a good reason had been established. At para 18 he said that the fact that the GP's initial diagnosis was made over the telephone and in advance of any physical examination "does not encourage confidence in the accuracy of the diagnosis". But he rightly went on to consider the rest of the medical evidence, including the opinion expressed by the doctor after she had seen Mr Robinson. The unequivocal effect of all the evidence was that, in the opinion of the doctor, Mr Robinson was suffering from stress and on that account he was not fit to attend court during the week commencing 30 June. The judge did not say in terms that he rejected this opinion. He expressed misgivings about it. I accept that it would have been better if the evidence had been more comprehensive in the respects suggested by the judge. The evidence might not have sufficed to persuade the judge on the basis of the Levy guidance to accede to an application to adjourn the trial on 30 June. But that was not the application that the judge had to deal with on 31 July. He had already refused the application for an adjournment on 30 June and there was no appeal from that decision.
28. Having identified shortcomings in the defendant's evidence, the judge should have reminded himself of the general need not to adopt a very rigorous approach and to have regard to the overriding objective of dealing with cases "justly" and in accordance with article 6 of the Convention. This was particularly important in a case where (i) the claim was for approximately £2 million; (ii) the defendant had a defence which had reasonable prospects of success; and (iii) it must have been apparent that a refusal to set aside the earlier decision would be likely to have very serious consequences for the defendant. The judge knew that this was a small company. In my view, he adopted too rigorous an approach to his assessment of the medical evidence. If he had kept the Pereira guidance in mind, he could not reasonably have rejected the doctor's opinion. If the sick note had stood alone, I do not consider that, even in the context of an application under rule 39.3(3), the judge could have been criticised for dismissing it. But there was evidence that the doctor's opinion was based on an examination of Mr Robinson. The opinion expressed in the sick note was confirmed by the doctor in her letters dated 25 and 30 July. I do not consider that there is much force in the point made by Mr Lazarus about the different causes to which the defendant attributed Mr Robinson's stress. The differences do not cast doubt on the medical opinion that Mr Robinson was suffering from stress and unfit to attend the trial. More importantly, the judge did not take these inconsistencies into account in reaching his decision.
Conclusion on the good reason for not attending trial issue
29. I would, therefore, reject both reasons given by the judge for holding that the defendant did not have a good reason for not attending the trial on 30 June. I wish to emphasise that it does not follow that any assertion by a party, supported by a sick note, that it did not attend the trial for reasons of ill health will be accepted by the court. Far from it. Neither the overriding objective of the CPR nor article 6 of the Convention requires the court to adopt such an approach. But for the reasons given in Pereira and Estate Acquisition and which I have elaborated above, the court should not generally adopt too rigorous an approach in its assessment of the evidence adduced in support of an application under rule 39.3(3).
30. I accept that the court should not overlook the position of the opposing party (the claimants in the present case). If the court is satisfied that the conditions in rule 39.3(5) are met and that it is right to exercise its discretion to grant the application, it will often be appropriate to allow the application on condition that the applicant pays the other side's costs and pays a sum on account of those costs within a short period. "
"I have seen him on a number of occasions in court and I have read through the emails that he has been sending to the court. I am perfectly satisfied that he is capable of acting for himself in this case and there is no valid reason for an adjournment."
Mr Pritchard additionally submitted that "the request for an adjournment was a further attempt to manipulate and/or derail the proceedings".
"That was not admitted so far by the case management orders that I have made. It is too late to do that."
But, if the judge had read the witness statements de bene esse, he should have appreciated that they were, or might have been, of critical importance to the determination of not only issues of liability but also of quantum. Nor was this a case of late filing of witness statements, since the 11 statements were filed on or shortly after the date on which the respondents, as claimants, had been required to serve their statements.
i) which the appellant had served prior to trial, in accordance with the trial timetable (this consisted of some 15 statements from clients or alleged existing or past clients of the respondents);
ii) for which the appellant had applied for permission prior to trial on 11 February 2015 to serve and had actually provided to the respondents on 9 February 2015 (this consisted of some 11 statements from clients or alleged existing or past clients of the respondents); and
iii) which the appellant obtained after the trial and sought to adduce in support of his application to set aside judgment and subsequently sought to use in support of his appeal (this consisted of some 3 statements from clients or alleged existing clients of the respondents referred to in the application to set aside dated 9 March 2015 and a further two dated 11 June 2015 and 15 September 2015);
his defence on causation and quantum (and perhaps also liability) had at least a reasonable, if not a better, prospect of success.
The costs appeal
"where the Defendant has retained any information or data referred to in this paragraph 3 in electronic format the same is to be copied on to a USB memory stick and the Defendant is required to deliver up such information to the Claimants."
Pursuant to that undertaking, the appellant delivered up a Kingston USB stick.
"this is a case where they [the respondents] have had to deal with Mr Solanki in person throughout, who has contested these matters throughout from the word go until he had to admit his contempt."
That to my mind is not an adequate summary reflecting the chronology of these proceedings nor amounts to any adequate consideration as to whether, in the event, it was proportionate in a case of this sort for the respondents to have incurred such substantial costs merely in connection with what, in the event, turned out to be limited committal applications. It is to be noted that the respondents' costs of the substantive trial were some £15,000 less than this figure.
Lord Justice Singh:
Note 1 All bolded text in this judgment is my emphasis. [Back]
Note 1 All bolded text in this judgment is my emphasis. [Back]