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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Christoforou v Christoforou & Anor [2020] EWHC 1196 (Ch) (15 May 2020) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2020/1196.html Cite as: [2020] EWHC 1196 (Ch) |
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2020] EWHC 1196 ( Ch) | ||
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS, AND PROBATE LIST (
ChD)
RE:
3 TORRIANO MEWS, LONDON NW5 2RZ
7 Rolls Building, Fetter Lane, London, EC4A 1NL |
||
2020 |
B e f o r e :
____________________
ALEXANDER CHRISTOFOROU | Claimant |
|
| - and - |
||
CHRISTAKIS CHRISTOFOROU GRACESTONE PROPERTIES GROUP LIMITED |
Defendants |
____________________
Thomas Grant QC and Carl Troman (instructed by Carter Perry Bailey LLP) for the Defendants
Hearing date: 19th March
2020
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
COVID-19: This judgment was handed down remotely by circulation to the parties' representatives by email. It will also be released for publication on BAILII and other websites. The date and time of hand-down was12 noon on 15th May
2020.
HH JUDGE EYRE QC:
Introduction.
Chris")
is the beneficial owner of the shares in the Second Defendant. The Claimant ("Alex") is the son of the First Defendant. For ease of explanation I will at times in this judgment adopt the approach taken in the pleadings and refer to them by their first names. I will do the same in respect of "Betty" who is Alex's mother and
Chris's
ex-wife and "Nicholas" who is Alex's brother and the other son of
Chris.
Chris.
Those proceedings became intensely acrimonious. Alex and his brother, Nicholas, were strongly supportive of their mother's stance in the matrimonial litigation.
Chris
and that he acted to his detriment in reliance on that intention. It is said that the common intention was formed and/or manifested in
various
family discussions culminating in discussions over a family dinner in February 2013. The Defendants deny that Alex has any interest in the Property. They say that there was no such common intention denying that the conversations relied upon by Alex took place and contesting the sundry dealings and/or the intention with which they were carried out.
2020
the Claimant applied for an order striking out paragraph 9 and the concluding part of paragraph 12 of the Amended Defence and Counterclaim ("the Contested Passages"). It also sought a direction that the issues in those passages be excluded from consideration at the trial of this matter and that other than with the leave of the court there be no evidence called at trial and no cross-examination as to those matters. It is that application which came before me on 19th March
2020.
The General Nature of the Allegation made in the Contested Passages.
Chris
and misappropriate and/or deprive him of his assets". Paragraph 9 sets out fourteen sub-paragraphs which are said to be other examples of such attempts. Paragraph 12 makes reference to the claim to the Property which had been asserted by Alex in the context of the matrimonial proceedings between
Chris
and Betty. The pleading says that the current claim is consistent with a previous pattern of behaviour of which the matters set out in [9] are examples.
The Pleadings and the Progress of the Proceedings.
value
because they were said to be part of a plan on the part of Alex and Nicholas to take
Chris's
assets from him. I will consider the extent of that line of defence more fully below.
challenged.
chapter".
The Amended Defence and Counterclaim repeats that assertion and follows it with these allegations at [9] the entirety of which the Claimant now seeks to have struck out:
"Moreover, this litigation is yet another episode, in a series of attempts by the Claimant and/or Nicholas and/or Betty, to harassChris
and misappropriate and/or deprive him of his assets. For the avoidance of doubt it is the Defendants' case that this litigation is being driven forward by the Claimant and Nicholas acting in concert. Other examples of such attempts are:
a. The Claimant's, Nicholas' and Betty's failed attempt in late 2014 to misappropriate some £12mChris
had achieved as part of property deals he was involved with.
b. In October 2014 the Claimant used his IT skills to dishonestly create and plant a `Declaration of Trust' document onChris'
computer purporting falsely to show
Chris
transferring ownership of companies with assets totalling some £30m out of his ownership to Nicholas. It was only through the use of a graphologist by
Chris
that the document was caused to be withdrawn by Betty.
c. The Claimant and Nicholas engaged in other unlawful behaviours such as illicitly jailbreaking an iphone given toChris
in July 2014 so as to listen to and record his activities. They thereafter recorded
Chris
having consensual sexual relations with a woman. Such behaviours led to
Chris
issuing proceedings from harassment in the Queen's Bench Division in October 2015.
Chris
will rely upon the instances of harassment itemised there in the trial of the present claim.
d. Nicholas' concoction of a story, as set out in his witness statement served in the matrimonial proceedings, aboutChris
having allegedly promised to provide him with a shareholding in
Chris'
business so that Nicholas could seek to seize control of
Christo
& Co.
e. Nicholas seeking to procure the transfer to him of Betty's 50% shareholding (valued
at in excess of £16m as at 2015) in Docklock Limited (such that Nicholas and
Chris
would have an equal shareholding) with Betty then able to claim 50% of the balance of
Chris'
shareholding during the matrimonial proceedings leaving him with only a 25% shareholding.
f. Nicholas' assertion within his witness statement served in the matrimonial proceedings that he had been giftedChris's
and Betty's matrimonial home at Ranulf Road as a wedding present. The home at Ranulf Road was
valued
at in excess of £3million.
g. Nicholas' intermeddling in proceedings issued byChris'
company
Christo
& Co Ltd against a Ms Kelly. Ms Recorder Rowlands held in a written judgment dated 12 March 2017 that his actions were "clearly motivated by malice".
h. Nicholas' appearance as a witness on behalf of TAG Limited in a claim for alleged non-payment brought againstChristo
& Co. In his judgment dated 24 November 2016 District Judge Fine concluded that he could "not accept the reliability" of Nicholas' evidence delivered to the Court.
i. The service by Docklock Ltd, (the main property company established byChris
over two decades) purporting to act by Nicholas and Betty, of notice upon
Christo
& Co to quit its headquarters at 66 70 Parkway.
j.Chris
being moved (in his absence) out of the matrimonial home into a flat at 73 Parkway (owned by Docklock Limited) to which he arrived to find his clothes and belongings in rubbish bags.
Chris
was subsequently served with notice by Docklock (purportedly acting
via
Nicholas and Betty) to quit the flat.
k. Nicholas' setting up of a commercial property business in competition toChristo
& Co Ltd (in which Nicholas sought to adopt the `
Christo'
name for that
venture)
leading to a decision by the Registrar of Trade Marks that Nicholas had acted in bad faith contrary to Section 3(6) of the Trade Marks Act 1994 and had acted in a manner that fell "below the standards of acceptable commercial behaviour": see the decision of the Registrar dated 10 May 2018.
l. Nicholas causing Blue Sky Investments Ltd ("Blue Sky"), another company owned byChris
(and which was allocated to him during the divorce) purportedly to award Betty, without instructions from
Chris
or the directors of Blue Sky, a tenancy for a property at
Cheyne
Walk, NW4.
m. Nicholas claiming to own a plot of land in Cyprus belonging toChris.
n. Nicholas seeking to depriveChris
of ownership of a Porsche motor
vehicle
by asserting that the
vehicle
was gifted by
Chris
to Nicholas' wife.
The present proceedings are anotherchapter
in the brothers' campaign against
Chris
of which examples have been given above. They are motivated by the malice of the Claimant and his brother against their own father, and are intended to harass him and misappropriate further of his assets ranging from modest sums to millions of pounds. As such they constitute an abuse of the Court's process.
Chris
will say that the dishonest and abusive conduct itemized above should inform the Court's approach to the Claimant's claim in these proceedings."
" The Claimant's current claim to be beneficially entitled to the Property may be inconsistent with previous statements made by him but is consistent with the previous cynical pattern of behaviour by the Claimant and Nicholas, examples of which are given above, whereby they claimed to be entitled to matrimonial assets so as to attempttheto remove them from the pool of assets distributed within the matrimonial proceedings and thereby decreaseChris'
share of the matrimonial assets."
"
The email alleged must not be taken at face
value.
Unbeknownst to
Chris
at the time, the email was sent by Nicholas and received by the Claimant in a cynical and ironic sense. In particular:
a. At the time that email was sent (8 April 2014) the Claimant and Nicholas already knew of their mother's intention to issue divorce proceedings and they were already preparing to try to takeChris'
assets away from him in that context. In fact divorce proceedings were delayed (from their intended service in June 2014) because Betty waited, at the direction of Nicholas/the Claimant, until a large transaction completed which resulted in a substantial profit going to
Chris.
b. .
c.
d. The "bigger picture" to which the Claimant referred was attempting to extract millions of pounds fromChris
in the context of the proposed proceedings. That included a £12m transfer of money to Beirut and a declaration of trust designed to divert £30m away from
Chris
and his companies including taking over control of
Christo
& Co through Betty's shareholding."
e.
f.
g.
h. Nicholas replied one minute later at 17.47 saying he thoughtChris'
email had been heavy handed. The Claimant replied to that email from Nicholas and said as follows:
"You call that a heavy hand?Christ,
wait till he sees what's coming his way "
i. The Claimant's reference to what was "coming"Chris'
way was to the brothers' plan to try to take
Chris'
assets from him
via
the divorce process."
Chris"
reference can be made to communications between the two brothers in November 2014.
value"
and that it had been an attempt to "deflect" Alex from revealing to
Chris
"that the Claimant and Nicholas planned to attack
Chris'
assets."
Chris
to the acquisition of the Property.
2020.
By an order of 19th February
2020
Fancourt J provided for the hearing of the current application and for the course to be taken in respect of the service of witness statements and disclosure depending on whether the application was or was not successful.
The Parties' Contentions in Outline.
Chris
asserted in proceedings in the Queen's Bench Division. No action has been taken to progress those proceedings following the lifting of a stay in December 2016. The Claimant says that is an abuse of process for the Defendants to seek to rely in the current case on allegations which have been made in other proceedings in circumstances where those proceedings have not been pursued. The Claimant also says that the allegations are irrelevant and are inadequately particularised. However, the Claimant's key contention is that for the parties to address the allegations in the Contested Passages (and in particular for the Claimant to do so) will require a
very
substantial exercise by way of further disclosure and witness evidence going a great deal beyond that which would be required if the Contested Passages were to be excluded. That would generate significant further expense and would add to the length of the trial. The Claimant says that this would necessitate the
vacation
of the currently listed trial and is precluded on that ground. He also says that the issues raised are peripheral and do not warrant the time and expense which consideration of them would require. He, therefore, he urges the court to use its case management powers to exclude the passages and to prohibit consideration of the allegations they contain.
characterisation
of the allegations as involving the introduction of similar fact evidence saying that they are instead a core part of the Defendants' case. The Defendants' case is said to be that Alex's claim to the Property is part of a continuing conspiracy to harm
Chris
and in the light of that the Defendants argue that it would be unjust if they were to be precluded from relying at trial on matters which establish that conspiracy. In addition the Defendants take issue with the Claimant's assessment of the extent of the extra preparation which will be necessary and of the amount of time which will be needed to deal with these matters at trial. They say that the allegations can be dealt with shortly and will not add to the length of the trial. In that regard Mr. Grant QC, for the Defendants, says that the existing time estimate is a generous one for a trial turning on competing contentions as to the beneficial ownership of the Property and involving analysis of a limited number of preceding dealings and consideration of whether there was or was not a common intention as alleged by the Claimant. He says that any additional time required to be spent on the matters in the Contested Passages can readily be accommodated in the existing listing.
Were the Allegations in the Contested Passages inherent in the original Defence?
challenge
to that pleading.
Chris
and Betty. It was said there that Alex and Nicholas were acting in concert and dishonestly with a
view
to depriving
Chris
of assets in those proceedings. It was being said that this motivation and plan on the part of the brothers explained matters relied on by Alex in Particulars of Claim as supporting his interpretation of the history. Thus the original Defence at [9] was a response to Particulars of Claim at [7] where it had been said that Alex had asserted a claim to the Property in the matrimonial proceedings. Alex had put that forward as an indication of the consistency of his approach. The Defendants responded at [9] saying that Alex's assertion in the matrimonial proceedings was part of an attempt to reduce
Chris's
share of the matrimonial assets. Similarly, the original Defence at [31] [34] was a response to the Claimant's reliance on the April 2014 emails and was an assertion that the emails were to be seen in the light of a plan to extract money from
Chris
in the matrimonial proceedings. Not only is that point made in the original Defence but it is confirmed in the amended pleading at [56(i)] where the words "
via
the divorce process" are added to the assertion that Alex was referring to the brothers' plan to take
Chris's
assets from him.
Chris.
It was being said that the brothers were plotting to deprive
Chris
of his assets in that context and in those proceedings. Moreover, that allegation was being made by way of explanation of conduct and email correspondence on which Alex was relying as support for his contentions in the current action.
Chris
more generally and with a
view
to benefiting Alex and/or Nicholas at
Chris's
expense. These are allegations which were not inherent in the original Defence. That pleading put in issue the conduct of Alex and Nicholas in the context of the matrimonial proceedings and entitled cross-examination about that and entitled the Defendants to say that the plan to assist Betty explained the brothers' actions and emails. It would not have entitled the Defendants to engage in cross-examination alleging the wider conduct set out in the new [9].
Are the Contested Passages or any Part of them to be struck out as an Abuse of Process?
Chris
began proceedings against Alex and Nicholas in the Queen's Bench Division. In those proceedings
Chris
sought damages and injunctive relief in respect of sundry alleged acts of harassment and breach of privacy together with acts of deceit and fraud. In March 2016 Master Davison stayed those proceedings until four weeks after the resolution of the matrimonial proceedings between
Chris
and Betty (and so until December 2016). He directed that
Chris
was to apply after the lifting of the stay for the listing of a ten-day trial in the window between 2nd January and 31st March 2017. However, since that stay expired
Chris
has taken no action to progress the Queen's Bench claim and in particular did not apply as the court had directed he should do for the listing of the trial. It is to be noted that Particulars of Claim in that action run to nineteen pages and contain a large number of alleged instances of harassment and related conduct and that it was envisaged that the trial of the action would take ten days.
Chris
"will rely upon the instances of harassment" particularised in the Queen's Bench claim.
v
Henderson (1843) 3 Hare 100 by Wigram
VC.
The Claimant says that by reference to that principle it is abusive for the Defendants to raise in the current proceedings allegations which have been raised in the Queen's Bench action. The second basis is to say that
Chris's
conduct of the Queen's Bench proceedings amounts to the "warehousing" of the claim made there in the sense of commencing an action but then putting the proceedings on hold. "Warehousing" can amount to an abuse of process though whether it does in the particular case will depend on the reason for putting the proceedings on hold and the length of the delay. The Claimant says that the Queen's Bench proceedings have been on hold for at least three years without any good reason. He says that in the light of that the Queen's Bench proceedings would be liable to be struck out as an abuse of process and that it is abusive for the Defendants to seek to raise in the current action contentions which are liable to be struck out as abusive elsewhere.
v
Henderson does not assist the Claimant in this regard. It would, indeed, be abusive for
Chris
to seek to bring fresh proceedings based on the allegations already raised in the Queen's Bench action. However, that is not what is happening here. The Defendants are raising these allegations as part of their defence to the Claimant's claim to be the beneficial owner of the Property and as part of their case as to the proper analysis of the parties' dealings. Mr. Grant is right to say that it is not a breach of the Henderson
v
Henderson principle for them to do so. That principle is to the effect that it is abusive for a party to seek to relitigate matters which could and should have been determined in earlier proceedings and to harass another party with multiple proceedings relating to the same issue. Here the Defendants are seeking to counter Alex's claim by reference to particular matters. The fact that those are matters which are in issue in other proceedings does not mean that the Defendants are harassing Alex by raising them. The Claimant's approach would have the consequence of precluding the Defendants from raising a matter in their defence because it is a matter which they have already put forward as a claim in different proceedings in circumstances where those other proceedings have not concluded. Such a limitation on the Defendants would create a risk of injustice in the current proceedings and is not required in order to prevent inappropriate relitigation of the same claims.
change
the nature of the Defendants' actions. At [67] the Defendants seek "appropriate relief
taking account of the facts and matters pleaded herein". The Claimant says that this is to be read as a reference to the entirety of the amended pleading including the Contested Passages and as seeking relief based on the allegations therein. That is an artificial reading of the Defendants' pleading. The prayer for relief at [67] is preceded by detailed pleading at [65] and [66] of the Defendants' case as to the respective contributions which the parties made to the purchase of the Property and an assertion that Alex's interest is limited to his contributions and that he must give credit for contributions made by
Chris.
The Counterclaim is expressly by way of an alternative to the Defendants' principal case which is to deny that Alex has any interest in the Property with the alternative being a contention as to the size of his beneficial interest if the Defendants' principal case fails. That is not a claim seeking relief based on the Contested Passages and so is not abusive as an attempt to relitigate matters raised elsewhere.
v
Henderson does not assist the Claimant is equally applicable here. Even if
Chris
were to be precluded from pursuing the Queen's Bench claim and from starting fresh proceedings based on the allegations made in that claim it is not an abuse of process for him to rely on those allegations in his defence against Alex's claim.
Would Consideration of the Matters in the Contested Passages disrupt the Trial listed for July
2020?
Chris
or as part of a course of conduct with it being necessary to see Alex's claim in the context of that course of conduct.
Chase
v
Springwell Navigation Corporation [2005] EWCA Civ 1602 at [80] [81] and Bilta (UK) Ltd
v
SVS Securities Inc [2017]
EWHC
135 (
Ch)
at [32].
vacated.
I will consider below the impact which this has on the Claimant's application to exclude these parts of the pleading.
Should the Questions of the Exclusion of Evidence and the Limitation of Cross-Examination be left to the Trial Judge?
v
Bank of England [2005] EWCA Civ 889 at [42] and [43] where it was said that a decision to limit cross-examination was "peculiarly a matter for the judge's discretion". However, I find that reference of limited assistance. The question in that case was whether the Court of Appeal should uphold an appeal against the trial judge's decision to limit cross-examination and the emphasis placed on that question being a matter for that judge's discretion was by way of contrast to the position of the Court of Appeal. The issue of the extent to which the exclusion of evidence or the limitation of cross-examination should be addressed before trial was not addressed.
view
of the case than that judge will have and do not have the knowledge of the case on the merits or of the documents which he or she will possess. Does that mean that it is inappropriate to make the orders sought? For the Claimant, Mr. Lightman QC says that if an order is not made now there will be little point in the trial judge making such orders because by then the harm will have been done: the expense of preparing witness evidence and of disclosure will have been incurred and the trial listed for July will have been
vacated.
Intervention now is necessary, says Mr. Lightman, if that is to be avoided.
choosing
between the courses advocated by counsel can be found in decisions of Green J and of Mrs. Justice Eady addressing the analogous power under CPR Pt 32.2 (3) of limiting witness evidence and excluding issues from consideration in witness statements.
v
Morgan Sindall (Infrastructure) plc [2013]
EWHC
4044 (QB), [2014] 1 WLR 2462 Green J limited the number of witnesses to be called at a trial which was some three months away. He set out the relevant considerations thus at [12] with consideration (iii) being of particular relevance for current purposes:
"Based on my experience in this particular case it seems to me that the following considerations may be relevant to the exercise of that broad power:
(i) CPR r 32 must be read as a whole. The court needs to use all the powers at its disposal to ensure the efficient and fair conduct of the trial. The power to prohibit the calling of witnesses sits towards the more extreme end of the court's powers and hence is a power a judge will ordinarily consider after less intrusive measures have been considered and rejected.
(ii) As Jackson LJ observed in the citation above a court which seeks to regulate the nature and extent of witness evidence will generally wish to do so at an early stage, before the preparation of the witness statements themselves and before costs are incurred needlessly. At this stage it may also be possible for the parties to identify matters which may be made the subject of admissions and which would, thereby, avoid the need for any further evidence to be adduced.
(iii) In the light of (ii) above, whilst it is clear that the power to exclude or control witness statement evidence is best exercised ex ante ie before the preparation of witness statements, the CPR does not preclude the court exercising its powers ex post, ie after witness statements have been drafted, with aview
to ensuring an efficient and fair trial.
(iv) A judge asked by a party to prohibit the adducing of contemplated future or already prepared witness statement evidence will be doing so before trial. Accordingly there is a risk that a decision by a judge may turn out, albeit with the benefit of hindsight, to have been made in error and to have caused unfairness to one or other of the parties in the conduct of the trial. Accordingly a court, asked to adopt this course, will wish to be satisfied that it has the fullest possible information available to it. Jackson LJ observed that such a court will need to have adequate preparation time and be given sufficient guidance from the parties as to which parts of which statements are said to be otiose, prolix, or otherwise inadmissible.
(v)
Based on my consideration of the issues in the present case, it seems to me that in cases where a court does seek to limit the calling of witnesses it may be necessary to introduce a safety
valve
pursuant to which the parties would have liberty to apply and/or, by consent, to
vary
the order of the court. In this regard, a court will be entitled to expect from the parties a considerable degree of co-operation and good sense. The imposition of costs sanctions, after the event, is a blunt instrument whereby the court may express its displeasure. It is far better for the parties to co-operate at the earlier stage with a
view
to modifying a court's prior order so that all factual matters that need to be aired at trial can be done so in an efficient manner "
v
Tradition (UK) Ltd [2019]
EWHC
3588 (QB) Mrs. Justice Eady was the trial judge but was considering whether, shortly in advance of the trial, to exclude the evidence of certain witnesses and to excise passages in the statements of others both on grounds of admissibility but also by reference to her case management power to exclude otherwise admissible evidence. She set out her approach to deciding whether to make the decision at the pre-trial stage in the following way at [53] and [54]:
"53. As the trial judge, it is common ground that I will be best placed to make the necessary determination of admissibility. That said, I am mindful that I must exercise particular caution in determining such an application at a pre-trial stage. As is observed in the White Book at paragraph 32.4.21, a passage now approved in Batesv
The Post Office [2018]
EWHC
2698 (QBD):
"Where an application is made during the trial, the judge is well placed to determine whether particular passages in a witness statement have realvalue
or are irrelevant and/or disproportionate. A judge asked to approach such questions at the interlocutory stage is at a disadvantage and should only strike out proffered evidence if it is quite plain that no matter how the proceedings may look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it (Wilkinson
v
West Coast Capital [2005]
EWHC,
1606 (
Ch)
(Mann J). The court must be on its guard to ensure that costs and delays are not increased by ill-conceived applications to strike out witness statements."
54. Inevitably the question whether such a determination should be made at a pre-trial stage will be fact and case sensitive. As was observed by Underhill P (as he then was) in the context of a discrimination claim in HSBC Asia Holdings BV & Anotherv
Gillespie [2011] ICR 192 EAT, whilst caution is necessary, if satisfied on the facts of a particular case that the evidence in question will not be of material assistance in deciding the issues raised and that its admission will cause inconvenience, expense, delay or oppression, such that justice would be best served by its exclusion, the judge should be prepared to rule accordingly."
very
apt in the circumstances of the present case that even if it had been admissible she would have excluded it at the pre-trial stage because it would distort rather than assist the court's focus and would have a prejudicial effect outweighing its probative
value
saying:
"For completeness, I should make clear that even if I was wrong about the admissibility of this evidence, I would in any event exercise my case management discretion to exclude it as it raisesvery
specific and
very
different issues from those that are to be determined in this case, relating to an entirely different potential move some years earlier. It would only serve to distort rather than to assist the court's focus. And it is also clear, even at this pre-trial stage, that the potential prejudice would far outweigh any possible probative
value
of this evidence, and the introduction of this material would jeopardise the fair trial of the case."
The Approach to be Taken.
Chase
v
Springwell Navigation Corporation the Court of Appeal explained the two-stage approach which is to be taken to assessing first the potential admissibility of similar fact evidence and then whether the court's case management powers should be exercised to exclude the evidence even if admissible. Giving the judgment of the court Brooke LJ put it thus at [67] [69]:
"67. The law relating to these matters is now relatively straightforward. The judge applied the principles set out in the judgments of this court in O'Brienv
![]()
Chief
Constable of South Wales [2003] EWCA Civ 1085. Although the
Chief
Constable appealed, the House of Lords made the principles for admissibility even simpler when it dismissed his appeal (see the report at [2005] UKHL 26; [2005] 2 WLR 1038). There is a two-stage test: (i) Is the proposed evidence potentially probative of one or more issues in the current litigation? If it is, it will be legally admissible. (ii) If it is legally admissible, are there good grounds why a court should decline to admit it in the exercise of its case management powers? Lord Bingham suggested at para 6 three matters that might affect the way in which a judge exercised his/her discretion in this regard:
(i) That the new evidence will distort the trial and distract the attention of the decision-maker by focussing attention on issues that are collateral to the issues to be decided;
(ii) That it will be necessary to weigh the potential probativevalue
of the evidence against its potential for causing unfair prejudice;
(iii) That consideration must be given to the burden which its admission would lay on the resisting party.
The first two of these considerations were said to be particularly potent when trial was to be by jury. In relation to the third of these matters, Lord Bingham referred at para 6 to:
"the burden in time, cost and personnel resources,very
considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections."
68. He ended by saying:
"In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair
to all parties."
69. Lord Phillips identified a relevant consideration at para 56:
"Χ [W]hen considering whether to admit evidence, or permit cross-examination, on matters that are collateral to the central issues, the judge will have regard to the need for proportionality and expedition. He will consider whether the evidence in question is likely to be relatively
uncontroversial, or whether its admission is likely to create side issues which will unbalance the trial and make it harder to see the wood from the trees." (Emphasis added)"
"70. We turn, then, to our conclusions. In our judgment the judge took too stringent aview
of the first issue (the relevance of the similar fact evidence). Although she never stated exactly what test she was applying, she appeared to require that the evidence should be of itself, and standing alone, probative of the nature of the relationship between Springwell and
Chase.
For instance, she said (at para 38 of her judgment) that
"the facts and circumstances of the other Greek families and the intricacies of their commercial relationship withChase
are unlikely, in the circumstances of this case, to be logically probative of whether or not such a relationship existed between Springwell and
Chase"
71. That puts the test for the relevance of any evidence, and conspicuously for the relevance of similar fact evidence, far too high. Cross & Tapper, Evidence (9thedition), p55, suggest that as a definition of relevance it is not possible to improve on article 1 of Stephen's Digest:
"any two facts to which [the term] is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other [emphasis supplied]"
72. A fact may therefore be probative either on its own or because it renders a conclusion more likely when taken in conjunction with other facts. The latter is essentially the role of similar fact evidence. The relationship ofChase
with the other Greek families, taken on its own, clearly cannot prove anything about the relationship between Springwell and
Chase.
But it might explain, illuminate or put in context evidence about that latter relationship that would otherwise be ambiguous or difficult to understand."
v
Chief
Constable of South Wales is of particular importance in the context of similar fact evidence because such evidence has a greater potential than more direct evidence of raising satellite issues and being of limited
value
in the overall context of the trial in question. It is, however, applicable generally when the court is considering whether to exclude admissible evidence as a matter of case management. Thus in BGC Brokers
v
Tradition (UK) Ltd at [49] Mrs. Justice Eady treated that approach as being generally applicable. Similarly in
Vernon
v
Bosley [1994] PIQR P337 Hoffmann LJ explained at P340 that the treatment of similar fact evidence was not the result of any special exclusionary rule but was a particular instance of the court assessing the relevance of potential evidence.
v
Goldman Sachs International [2015]
EWHC
759 (Comm) Mrs. Justice Carr set out the approach which is to be taken when the court is considering whether to permit a
very
late amendment in the sense of one which will necessitate the
vacation
of a trial date. That approach is not directly applicable here because this is not a matter of the Defendants seeking permission for an amendment but the Claimant seeking to strike out parts of a pleading which has already been permitted and to exclude from consideration matters set out therein. However, it is of relevance to note that in the Quah case the loss of the trial date was a matter of considerable importance. Similarly in the context of the current application it is a
very
material consideration that the retention of the Contested Passages as a whole will lead to the
vacation
of the trial listed for July.
challenge
his or her opponent's case by cross-examination. However, that established no more than the proposition that when a topic is properly raised at trial
challenge
by cross-examination should be permitted. It did not establish that a party should be allowed to ask in cross-examination questions about any topic which he or she wishes. The true position is the reverse of that and the court has power to limit cross-examination to those topics which are properly in issue between the parties.
challenge
the Claimant's case by reference to these matters.
Vernon
v
Bosley where he said at P339 that:
" It is an important aspect of an adversary system of justice that a party should so far as is possible be allowed to decide how to present his case. If he or his counsel thinks that an item of evidence or a line of cross-examination may be relevant, the court is generallyvery
reluctant to shut it out. He should not be left with a feeling that he might have won if only he had been allowed to adduce evidence or ask questions which the judge refused to hear. Nor should he be unnecessarily controlled or directed in the way he conducts his presentation of evidence or cross-examination particularly if he is represented by a professional advocate on whose sense of responsibility the court can rely".
"But there are limits to the extent to which the parties can be allowed free rein. A party's right tochoose
how to present his case may have to be balanced against other legitimate public or private interests. For example the both the opposing party and the general public have an interest in keeping down the length and cost of litigation. On this ground the judge will sometimes rule inadmissible the exploration of side-issues which, though having some potential relevance, do not appear sufficiently relevant to justify the time and expense which would be required to investigate them."
change
of approach which has followed the introduction of the CPR but I note that in MacLennan
v
Morgan Sindall (Infrastructure) plc at [21] Green J clearly regarded the "considered judgment" of the claimant's counsel as persuasive with regard to the number of witnesses which needed to be called on a particular topic.
view
of such advocates that justice to their client requires a particular case to be put. A judge exercising these case management powers in advance of a trial must be doubly cautious. However, I must also be mindful of the need for cases to be dealt with proportionately. It is an important part of case management to ensure that trials are focused on the key issues between the parties and the court must be mindful that the generation of a host of satellite issues can lead not just to disproportionate expense but can also create the risk of an unjust outcome resulting from a lack of focus. Where the question is one of the exclusion of evidence regard must be had to the approach set out in Springwell: an approach which has especial relevance in the case of similar fact evidence but which as explained above is an illustration of a generally applicable approach. Finally the assessment must be undertaken in the light of the impact which the exclusion or inclusion of evidence will have on any trial date and having regard to the stage at which the case which is to be excluded was raised. Any party who is prevented from putting forward the full case which that party wishes to promote may have a sense of grievance but the legitimacy of that sense of grievance will be markedly less if the case being excluded was raised at a late stage in the proceedings.
The Nature of Evidence of the Matters in the Contested Passages.
Chris
and to misappropriate and/or deprive him of his assets". That paragraph concludes by
characterising
the claim as "another
chapter
in the brothers' campaign against
Chris".
At times in his submissions Mr. Grant sought to put matters differently and to
characterise
the current claim as an element in a single conspiracy. But that was not how matters are put in the amended pleading. There it is not being said that the claim is part of a single plan but that it is
characteristic
conduct of the Claimant and of his brother and mother. That is similar fact evidence rather than direct evidence relating to the facts in issue. This is because the Defendants are alleging a series of acts with the same motivation rather than a deliberate plan of which the current claim was a part from the outset.
Chris
in other circumstances would render the conclusion that the alleged common intention was a deliberate fabrication more likely and so is admissible. The question then becomes that of whether even though admissible evidence of these matters should be excluded in exercise of my case management powers.
Are the Contested Passages to be retained or excluded?
Chris
and to misappropriate his assets and to be considered in the context of the other actions which are said to have formed part of that campaign. Although the contention is made by reference to a number of particular instances it is a single core contention. I will consider first whether that overarching contention is to be retained or excluded turning then to consider whether there are discrete elements of the amended pleading which should be retained even if other parts are excluded.
very
substantial exercise. The trial judge will have to make findings on a number of highly contentious sub-issues and will have to hear evidence and argument about those issues. Mr. Lightman pointed to the additional expense which will be generated by that exercise and contended that it would not be proportionate to the amounts actually at stake. He says that although the Property has been
valued
at approximately £1.4m the amount actually at issue is only of the order of £735,000. This is because the order made in the matrimonial proceedings provides for Betty to pay
Chris
£665,000 if Alex succeeds in the claim. This is a relevant factor but is of comparatively limited weight by itself. Rather more significant is the nature of the exercise which will be required if the issues in the Contested Passages go to trial. Some of the sub-issues which will be generated are more complex than others but a number of them involve significant factual disputes the determination of which will require a series of mini-trials. Thus at [9(c)] the Defendants adopt and repeat the harassment allegations made in the Queen's Bench claim determination of which was estimated to require ten days of court time. The allegations in the Contested Passages are classic examples of the kind of matters which have the capacity to distort the trial and to distract attention to collateral issues even in a case where the facts are to be found by a professional judge rather than a jury. It is important to keep in mind the nature of this case. It is the assertion of an entitlement to beneficial ownership of a property with that entitlement said to come from detrimental reliance on a common intention between family members. That is by no means unusual. This is a case of a kind which the courts are well-used to determining by an assessment of competing evidence of the parties' intentions and of the dealings directly relevant to the property in question albeit seen in the context of the particular family relationship but without normally needing to make findings about the entirety of the dealings between the family members.
very
important consideration. Standing alongside it is the fact that the case now being put by the Defendants in the Contested Passages comes at a late stage in the proceedings. From the outset the Claimant's case has asserted a common intention as to the beneficial ownership of the Property. That phrase was not used in the original Particulars of Claim but it was clear that this was what the Claimant was asserting. Thus at [21] that pleading said "it was at all times agreed, intended, and understood that
the Second Defendant would hold the Property on trust for the Claimant". The original Defence denied that there was any such agreement. It made reference to the animosity between the family members. The original Defence also set out the contention that Alex and Nicholas had been involved in a plan to deprive
Chris
of his assets. However, that plan was alleged to have been with a
view
to depriving
Chris
of assets in the context of the matrimonial proceedings and was put forward as an explanation of the emails on which the Claimant relied. The Amended Particulars of Claim uses "Common Intention" as a defined term and says that it was formed at the alleged family dinner. However, there is no
change
in the case being put and the amendments of the Particulars of Claim in that regard amount to modest
changes
in the formulation of the intention and particularisation of when the agreement is said to have been reached. The case being put by the Defendants in the Contested Passages cannot properly be seen simply as a response to those
changes
in the Particulars of Claim. Indeed the Contested Passages do not involve the Defendants in solely putting a different case as to the intention or as to the circumstances of the family dinner. Rather they amount to the putting of a new case as to the nature of the claim as a whole. They go beyond the previous allegations of conduct by the brothers in the context of the matrimonial proceedings to say that the claim itself is a dishonest attempt to deprive
Chris
of his assets and is part of a campaign to do so. It would have been open to the Defendants to put their case in that way in the original Defence but they
chose
not to do so. Instead this new case is put by way of an amendment made exactly one year after the original Defence and only seven months before trial. The Defendants do not suggest that this is a case where new material has come to light enabling them to plead these allegations when they were not previously able to do so. Instead they argue that the Contested Passages are an amplification of the line of defence which was inherent in the original Defence but as already indicated I do not accept that
characterisation
of matters.
Chris
in the matrimonial proceedings will be before the court at the trial albeit only to the extent that it was part of the original Defence as explained at [24] [26] above. The degree of ill-feeling between the family members is likely to be readily apparent at the trial. No objection is taken to the amendment made to the Defence at [8]. As originally pleaded that paragraph alleged hostility between
Chris
and his sons and made reference to an "extensive series of disputes" amounting to "internecine warfare". The amendment has expanded that allegation to refer to the brothers becoming "overtly hostile" to
Chris
after the start of the matrimonial proceedings. The Claimant says that the language being used by the Defendants is hyperbolic but accepts that there have been a series of disputes. It follows that the trial judge will be able to take account of the history of dispute between the parties and the acrimony stemming from the matrimonial proceedings. There will be ample scope for the judge to assess the force of the Defendants' contention that the allegation of a common intention formed at a family dinner is a fabrication and to take account of the family feelings when doing so.
Chris
but that the Defendants are only permitted to adduce some of the instances which they say constitute that campaign.
Chris
was moved out of the matrimonial home in his absence and that he was then served with a notice to quit the flat into which he had been moved. These are discrete matters and can be seen as an aspect of the hostility demonstrated in the context of the matrimonial proceedings. Again it will be a matter for the trial judge whether and to what extent to permit evidence and cross-examination in relation to those matters by way of amplification of the dealings in the context of the matrimonial proceedings.
The Claimant's Request for Further Information.
2020
the Claimant served a request for further information in respect of a number of parts of the Amended Defence. The Defendants declined to provide that information saying, through their solicitors, that to answer the request would disrupt preparation for the hearing before me and that the request was unnecessary because most of the requests would be addressed in the Defendants' evidence. It was said that if any of the requests had not been addressed in the evidence then the Defendants would consider providing further information at that stage. Before me the additional point was taken that in February 2019 the Defendants had provided extensive further information in response to a request of January 2019 and that it is inappropriate for a party to be harassed by multiple requests for further information in respect of the same pleading.
changes wrought by the amendment of Particulars of Claim and of the Defence. I am satisfied that the request is properly made and relates to matters of which the Claimant is entitled to further particularisation in order to know the case being advanced by the Defendants. Accordingly, an order for the provision of the information will be made.