The earlier post on Redstone Mortgages Ltd -v- B Legal LtdEWHC 3390 (Ch)contained some important observations from the judge on the steps to be taken if a party wishes to challenge the authenticity of a document. Here we look at this issue in more detail.
This is a rule that is easy to overlook. In essence a party is deemed to admit the authenticity of a disclosed document unless a notice is served under this rule.
Notice to admit or produce documents
(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.
(2) A notice to prove a document must be served –
(a) by the latest date for serving witness statements; or
(b) within 7 days of disclosure of the document, whichever is later.
THE IMPORTANCE OF THIS RULE
This rule has been considered on several occasions by the Court of Appeal.
In Eco3 Capital Ltd & others -v- Lusdin Overseas Ltd  EWCA Civ 413 the defendants, on appeal, objected to a finding by the trial judge that a diary note was not genuine and accurate:
THE PROCEDURE AT TRIAL
This was summarised by the Court of Appeal
- In the course of his opening speech Mr Cunningham drew attention to the diary note of 12th August 2005. He submitted that this document was a fabrication which had been inserted into Doctor Shadrin’s diary at a later date.
- Doctor Shadrin was called to give his evidence on the fourth day of the trial. Immediately before he went into the witness box Mr Warwick raised a point on the rules. He submitted that the claimant had not served any notice under CPR rule 32.19. Accordingly the claimant was deemed to have admitted the authenticity of the diary note dated 12th August.
- The judge’s response to this observation, which may or may not be characterised as a ruling, was as follows:
“Judge Rose: I think we can therefore proceed on the basis that, other than those documents where it’s already clear that the provenance is disputed, there is no need to prove them in the formal sense, and that in your opening and in cross-examination you should attempt, so far as possible, as we go along, to raise – draw our attention to documents on which you are going to rely. If, as you say, at a late stage a document arises which you hadn’t previously realised the significance of, we will cross that bridge when we come to it.”
- In effect the judge was saying that, regardless of the absence of notices under rule 32.19, if it transpired that the authenticity of any documents was in dispute, these matters would be dealt with during the trial.
- Doctor Shadrin then proceeded to give his evidence. This occupied the rest of day four and continued into day five. On the morning of day five Mr Cunningham cross-examined Doctor Shadrin about the diary entry of 12th August. He suggested two alternative scenarios. The first scenario was that Doctor Shadrin had fabricated this document at a later date to support his defence. The second and alternative scenario was that Doctor Shadrin had made his note on the recorded date, namely 12th August 2005, but it was untruthful. Doctor Shadrin had deliberately drafted the note to give the false impression that he had told Mr Lisitsin about the two-tier structure and the differential. Doctor Shadrin denied both of these suggestions. He maintained that he had made the note on the recorded date and that it was accurate.
- There was no further reference to the point on the rules which Mr Warwick had raised on day four until final speeches. In the course of his final speech on day nine Mr Bishop submitted that the claimant had had more than one opportunity before the trial to serve a notice under rule 32.19, but had failed to do so. Mr Bishop then made two submissions. First, he submitted that under the rules the claimant should be prohibited from questioning the authenticity of the diary note. Secondly, he invited the judge to prefer the evidence of Doctor Shadrin to that of Mr Lisitsin and to hold that the diary note was genuine and accurate.
THE DECISION ON APPEAL
Part 7. The diary note
- The first and second defendants’ third ground of appeal is that the judge ought to have held that the diary note was correctly dated and accurate, because the claimant had failed to serve a notice under CPR rule 32.19 challenging the authenticity of that document.
- I have set out in Parts 3 and 4 above the relevant facts concerning Doctor Shadrin’s diary note dated 12th August 2005. The claimant’s case in respect of this document was two fold:
i) Doctor Shadrin wrote the diary note on a later date on two blank pages which just happened to be at the right place in his 2005 diary. Alternatively,ii) Doctor Shadrin drafted the diary note on the recorded date, 12th August 2005, but he did so inaccurately. His motive was to make it look as if he told Mr Lisitsin about the two-tier structure and the differential, when in fact he had not done so.
- The judge found that one or other of those two contentions was correct without saying which. See paragraph 88 of the judgment or proposition (ii) in the summary of the judgment above.
- I have examined the original of Doctor Shadrin’s diary for 2005. I am bound to say that the second of the two scenarios is distinctly more likely than the first. It would have been surprising if two blank pages had been left at exactly the right place in the diary.
- If the second scenario was correct, then there would be no need for a notice under CPR rule 32.19. The document purported to have been written by Doctor Shadrin on 12th August 2005 and that was indeed what happened.
- Let me now turn to the first scenario. Suppose Doctor Shadrin wrote the note at a later date on two blank pages which just happened to be at the right place in his diary and then dated it 12th August 2005. Strictly speaking, a note misdated in this way is a forgery: see section 9 (1) (g) of the Forgery and Counterfeiting Act 1981. For the purposes of rule 32.19 such a diary note would not be “authentic”.
- It was clear from Mr Cunningham’s opening that he did not accept the accuracy of the date on the note. The defendants did not object at that stage on the basis that the claimant was deemed to have admitted the accuracy of the note.
- It is quite true that just before Doctor Shadrin gave evidence Mr Warwick drew attention to rule 32.19. Mr Warwick did not, however, press the point. That is unsurprising, because he was counsel for BMW. Mr Bishop, who represented Doctor Shadrin, did not pursue the point at all. In particular Mr Bishop did not object to Mr Cunningham cross-examining Doctor Shadrin about the accuracy of the date.
- If Mr Bishop intended to hold the claimant to the deemed admission, he should have objected to that line of cross-examination. If he had done so, the judge would then have had to decide whether to allow the claimant to withdraw the deemed admission. I incline to the view that the judge would have allowed withdrawal, because that would not cause prejudice to the defendants. However there was no objection raised by Mr Bishop, so the issue did not arise.
- Mr Bishop first placed reliance on rule 32.19 in his closing speech. By then it was too late. The accuracy of the date of the diary note had been fully explored in evidence. It was not appropriate on the last day of trial to invite the judge to ignore part of the evidence on the basis that it was shut out by a deemed admission.
- Mr Tager submits that all defendants were prejudiced by the absence of notice under rule 32.19; if counsel had given such notice at the proper time, the defendants could have instructed a handwriting expert to advise. In my view it is highly unlikely that any handwriting expert could have assisted the court on the date of the diary note. Although an expert could have assisted on the question of who wrote the note, there was no dispute about that.
DAVID GAME COLLEGE LTD
The rule was also considered by the Court of Appeal inDavid Game College Ltd  EWCA Civ 1430. The claimant relied upon a written agreement that bonuses would be paid. The written agreement was annexed to the Particulars of Claim.
Again it is important we look at the way in which the defence was conducted, as summarised by the Court of Appeal.
“14. The Defendants admit that a document bearing the signatures of the Second Defendant and of the Claimant and dated April 2005 was completed in or about April 2005. The Defendants make no admissions as to the circumstances of the creation and/or execution of the same.
. . .
16. In so far as it is, or may be, contended that the said document constitutes or evidences any new agreement, the same is denied. At most the same evidences a previous, or more than one, previous oral agreements between the Claimant and the Second Defendant.”
and in paragraph 27 they set out their case in relation to the contractual position between the parties, namely, that any agreements were oral and contained certain terms which were then identified.
- As can be seen, therefore, the defendants at that stage formally admitted that a document dated April 2005 had been brought into being in April 2005 and that it bore the signatures of [the Claimant] and Mr. Game, although they denied that it had the effect which she attributed to it. In the absence of a positive averment that Mr. Game had not himself signed it, that can only be understood as an admission that he had indeed done so. The fact that in subsequent paragraphs the defendants made it clear that they denied that it contained any agreement between the parties cannot detract from that.
- A copy of the April 2005 document was disclosed to the defendants in September 2010. Mr. Game’s position at that time was that he did not remember having signed it, but accepted that his signature might be on it. A few months before the trial was due to start it became apparent that there were two versions of the copy document which differed in the respects I have described. That led the respondents to instruct an expert forensic scientist whose opinion was sought on whether the copies could all be traced back to one and the same original. It also prompted [the Claimant] to serve a second witness statement explaining how the different copies had been created. The expert concluded that the text and signatures shown in all the copies he examined had been produced from the same original. Finally, only a few days before the trial Mr. Game made a second witness statement, in which he sought to put in issue the authenticity of the document by making a positive assertion that he had not signed it. He did not accuse [the Claimant] in terms of having forged it, but he suggested a way in which she might have done so and by implication suggested that she had. That was inevitable, because in truth there were only two possibilities: either Mr. Game had signed the document or [the Claimant] (or someone acting on her behalf) had forged it.
- Not surprisingly in the light of Mr. Game’s second witness statement, Mr. Evans-Tovey, who was representing [the Claimant], was keen to force the defendants to make their position clear. Having attempted to persuade the judge that he could simply put [the Claimant] to proof that the document had indeed been signed by Mr. Game, Mr. Gorton Q.C. eventually made an application on behalf of both defendants for permission to amend their defence. The proposed amendment was to the effect that:
(i) there had never been any written agreement between the parties;(ii) Mr. Game did not sign the document; and (if necessary)
(iii) [the Claimant] or others on her behalf had created the document with a view to gain.
- The judge refused the defendants permission to amend. He also refused permission to appeal and a separate application for an adjournment. The trial then proceeded.
THE JUDGMENT AT FIRST INSTANCE
The claimant went on to make strenuous submissions about the defendants’ failures to serve a notice under 32.19. The judge at first instance failed to deal with this in his judgment.
THE COURT OF APPEAL’S DECISION
- Mr. Evans-Tovey submitted that, in the light of the admission in paragraph 14 of the defence, the failure of the defendants to challenge the authenticity of the document pursuant to CPR rule 32.19 and the rejection of their application to amend the defence to allege forgery, it was not open to the judge to find that the document was not what it purported to be. He submitted that in those circumstances Mr. Game’s signature on the document was sufficient to authenticate it and bind him to its contents, whatever their meaning and effect might be: see Parker v The South Eastern Railway Company(1877) 2 C.P.D. 416, in which Mellish L.J. said at page 421:
“In an ordinary case, where an action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents.”
- In response Mr. Gorton pointed to paragraph 27 of the defence, in which the existence of an agreement had been put in issue, and submitted that that was sufficient to entitle the defendants to put [the Claimant] to proof of her case as a whole. He also submitted that, if the defendants could not require [the Claimant] to prove her case as to the circumstances in which the document had come into existence, they would be prevented from contesting the existence of an agreement altogether.
- In my view Mr. Evans-Tovey’s submission was clearly correct. The authenticity of the April 2005 document was not in issue. The defendants had admitted in their defence that Mr. Game had signed it and had not attempted to withdraw that admission or challenge the authenticity of the document until they made their application for permission to amend. They were, of course, entitled to dispute its meaning and effect, which they did in paragraph 27 of the defence, but that is as far as it went. To deny that a document contains or evidences a legally binding agreement is quite different from disputing the authenticity of the document itself. Unless and until the defendants withdrew the admission in paragraph 14 of the defence they were not entitled to deny Mr. Game’s signature. Nor were they entitled to say that the document was not his, in the sense that he had not signed it and was not bound by its contents. In the ordinary way a person adopts and is bound by the contents of a document to which he puts his signature. Of course, the defendants would not be bound by the document if the words had been added after Mr. Game had signed it and without his authority, but in that case it would be a forgery and not authentic. That is exactly the case that the judge had refused the defendants permission to make.
- For reasons which are unclear to me the judge failed to deal in his judgment with Mr. Evans-Tovey’s submissions about the authenticity of the April 2005 document and, moreover, failed to face up to the consequences of finding that Mr. Game had not signed it. If he had done either of those things he would, or at any rate should, have realised that the defendants were not entitled to dispute the authenticity of the document or contend that they were not bound by it. Contrary to Mr. Gorton’s submission, it would still have been open to them to contend that the document was of no contractual effect or did not bear the meaning which [the claimant] attributed to it, but that is a different matter.
THE ARGUMENT THAT THE CLAIMANT HAD “WAIVED” THE RIGHT TO REPLY ON CPR 32.19
Again this was rejected by the Court of Appeal.
- Mr. Gorton drew our attention to the judgment of this court in Eco 3 Capital Ltd v Ludsin Overseas Ltd  EWCA Civ 413 and submitted that by allowing the issues surrounding the creation of the document to be fought out at trial [the Claimant] had waived any right to rely on rule 32.19. However, I am unable to accept that argument, any more than I could accept any suggestion that [the Claimant] had acquiesced in the defendants’ challenge to the authenticity of the document. It is clear from the written and oral submissions made at the trial that Mr. Evans-Tovey’s submissions on authenticity were placed squarely before the judge, both in opening and closing, but he could not afford to allow the defendants’ case on the facts to go unchallenged. The circumstances in which the document had come into being had been covered extensively in the witness statements and might conceivably have been relevant to questions concerning its meaning and effect, if not to its authenticity. In any event, however, I do not think that the defendants’ failure to give a notice pursuant to CPR 32.19 adds anything of significance in the light of the admission in the pleading and the judge’s refusal to allow them to pursue a case of forgery.
- Mr. Evans-Tovey submitted that there was a considerable body of evidence (including expert evidence) tending to support [the Claimant’s] account which the judge failed to deal with and that his decision could not stand as a result. In my view the judge should have dealt with that evidence given its potential significance, but it is unnecessary to consider whether the omission to do so fatally undermines the judge’s decision. For the reasons I have given I am satisfied that it was not open to the judge on the pleadings to find that the April 2005 document had not been signed by Mr. Game and was therefore not his document. That makes it necessary to consider the cross-appeal against the judge’s refusal of permission to amend the defence.
THAT PLEADING POINT IS VERY IMPORTANT
Finally dealing with the most recent case of Redstone Mortgages Ltd -v- B Legal LtdEWHC 3390 (Ch) it is clear that service of a notice under 32.19 is not enough if a party is going to allege forgery. Merely serving a notice under CPR 32.19 is not enough to allow a party to engage upon an allegation of forgery.
- Proceedings commenced. In paragraph 20 of its Defence served in April 2012 B Legal relied on the Sher Memorandum. In its Reply dated 18 July 2012 Redstone simply did not admit whether or not any report had been made to Beacon in the form of the Sher Memorandum. By the time of trial Redstone did not admit the authenticity of the Sher Memorandum. On the last day for so doing (22 November 2013) it served a Notice pursuant to CPR 32.19 requiring the document to be proved at trial. It does not plead any positive case that the document is forged or lead any evidence seeking to establish falsity.
- Requiring a party to “prove” a document means that the party relying upon the document must lead apparently credible evidence of sufficient weight that the document is what it purports to be. The question then is whether (in the light of that evidence and in the absence of any evidence to the contrary effect being adduced by the party challenging the document) the party bearing the burden of proof in the action has established its case on the balance of probabilities.Redstone cannot (by a refusal to admit the authenticity of a document) transfer the overall burden of proof onto B Legal, any more than it could do so simply by refusing to admit a fact.
- The question is therefore whether any evidence as to the provenance of the document has been produced, and if it has then whether (although not countered by any evidence to the contrary) such evidence is on its face so unsatisfactory as to be incapable of belief. It is vital that the process of challenge is fair. Criticism of the evidence about the authenticity of the document cannot amount to a covert and unpleaded case of forgery. If a case of forgery is to be put then the challenge should be set out fairly and squarely on the pleadings (and appropriate directions can be given). If the charge is that a witness has forged a document (or has been party to the forgery of a document) and the grounds of challenge have not been set out in advance, then if the questions are not objected to the response of the witness to the charge must be assessed taking into account the element of ambush and surprise.
KEY POINTS IN PRACTICE
1. The most important point is for practitioners to be aware that CPR 32.19 exists. If a notice is not served under CPR 32.19 within the requisite time then the document is deemed to be admitted.
2. Failure to serve a notice under CPR 32.19 does not prevent a party from arguing that the contents of the document are inaccurate.
3. It appears to be possible to waive the implied admission if the point is not clearly taken at trial.
4. Serving a notice under 32.19 does not enable a party to embark upon allegations of forgery when such allegations are not clearly pleaded.
WHAT ABOUT E-DISCLOSURE?
So far as I can tell there is nothing in the e-disclosure Practice Direction that exempts any electronic document from CPR 32.19 (it would be impossible for a practice direction to overrule a specific rule in any event). That means that any challenge to the authenticity of a document has to be made within the time frame allowed by the rule.