LATE APPLICATIONS TO ADJOURN: ABSENT WITNESSES AND CPR 33.4 WHEN A WITNESS IS UNWILLING TO ATTEND

Mrs Justice Whipple had to consider several preliminary applications in the case of American Express Services Europe Ltd -v- Al-Shabrakah [2015] EWHC 3004 (QB). There are several important observations in relation to applications to adjourn and witness evidence where a party relies on the Civil Evidence Act.

THE CASE

The claimant was seeking sums due from the defendant following the use of credit cards.  Shortly before the trial the defendant applied for an adjournment on the grounds of his poor health.

KEY POINTS

  • An application to adjourn was dismissed because it was made too late.
  • The fact that parties were discussing settlement was not a good reason for delaying an application to adjourn a trial date.
  • When a defendant has not filed a witness statement the fact that he cannot attend may well not be prejudicial since he would not be able to give evidence in any event (without the permission of the court).
  • When there is no clear prognosis as to when a party will be able to attend court there may be little point in adjourning a trial.
  • When a Civil Evidence Act notice is properly served there can be no basis for a party disputing that the evidence is admissible.  The issue is one of weight.
  • When a Civil Evidence Act notice is served  on the grounds that the witnesses were unwilling to attend there is no point in the court making an  order that the relevant witnesses attend to be cross-examined. CPR 33.4. does not apply.

(A REMINDER OF THE PROVISIONS OF CPR 33.4.

Power to call witness for cross-examination on hearsay evidence

33.4

(1) Where a party –

(a) proposes to rely on hearsay evidence; and

(b) does not propose to call the person who made the original statement to give oral evidence,

the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.

(2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.)

THE JUDGMENT ON THESE PRELIMINARY ISSUES

“Application to vacate trial
  1. By application notice dated 15 October 2015, the Defendant applied to vacate the trial date. That application was made just one working day before the trial window which commenced on 19 October 2015. That application was heard by Blake J on Friday 16 October 2015, and not surprisingly, he adjourned the application to the trial judge. The application was renewed before me at the outset of the trial, and I refused the application and said I would give reasons later. These are my reasons.
  2. The Defendant’s application notice was supported by the witness statement of David Rosen, solicitor for the Defendant, dated 15 October 2015, and his exhibited materials.
  3. The Claimant resisted the application and has filed a witness statement dated 16 October 2015, together with exhibited materials.
  4. The power to vacate is within CPR 3.1, and must be exercised consistently with the overriding objective. If I refused this application to vacate, the trial would go ahead without the Defendant being present in person (although he was represented by Mr Rosen). That would engage CPR 39.3, which would enable me to continue the trial in the absence of a party; give me power to strike out his defence or counterclaim; and enable the Defendant to make an application to set aside any judgment I may give against him. The provisions of Practice Direction 39A, para 2 are relevant also.
  5. The main basis for seeking to vacate was that the Defendant was said to be unfit to attend trial or give directions to his representative. In support of this, Mr Rosen’s witness statement exhibited a medical report dated 2 October 2015 from Dr Hamed Abdel-Wahab, Professor of Cardiology at the “Heart Care Clinic” (no further details were given, and I do not know what this clinic is or where it is). That doctor indicated that the Claimant had heart problems and had been recommended complete bed rest for three months “from today” (ie from 2 October 2015, the date of the report). There was an inconsistency in this report, because the advice to rest flowed from the date of the report, although the condition for which rest was recommended was said to have been identified some months ago.
  6. On the first day of trial, 20 October 2015, Mr Rosen provided me with a fuller medical report from a different doctor, Doctor Ahmed El-Neklawi, a consultant physician, dated 18 October 2015. There is no address for Doctor El-Neklawi and it is unclear where he works. Dr El-Neklawi says that the Defendant was diagnosed with ischaemic cardiomyopathy back in 2014, alongside a number of other heart problems. The Defendant had been advised to travel to the US for possible correcting procedures but had not done so. On medical examination (it is not stated when that examination took place) certain signs of congestive heart failure were identified. The recommendation was for complete bed rest, and that corrective procedures (it is not stated what those procedures might be) abroad should be sought as soon as possible; yet it was said that the patient was unfit to travel (I question therefore how he was to get abroad for the proposed procedures). That doctor said that the Defendant was too weak to be able to give instructions or make decisions, that he should be medically evaluated after 3 months, and concluded that the Defendant was unfit to attend Court.
  7. My main reason for refusing the application to vacate is that it is made far too late, without good reason for the lateness. It is quite clear that the Defendant’s health problems, such as they may be – and I make no finding about them – have been ongoing for some considerable time. The latest medical report suggests that they were diagnosed in 2014. Notice of the trial date was given on 5 February 2015, for a 5 day trial to commence during a trial window which ran from 19 October 2015. There was no suggestion that the Defendant was too unwell to attend trial until the back end of last week. If the Defendant had health problems which might have interfered with his ability to attend trial, the Court (and the Claimant) should have been made aware of them much earlier.
  8. To grant this application would mean that Court time would be wasted. It would mean that the Claimant’s time would be wasted – the Claimant is here, represented by Counsel and solicitors. The Claimant’s witness is here, and his time too would be wasted. Costs would be thrown away. It would mean that there would be a further delay in the matter being heard, bearing in mind that the claim relates to transactions which took place in 2012, already almost 3 years ago.
  9. These reasons are sufficient to dispose of the Defendant’s application. But there are other points to make, which lend support to my conclusion that the application must be refused.
  10. First, the Defendant suggests that negotiations have been ongoing between the parties and that is why the application was not made until so late in the day. The fact that there may have been negotiations is plainly an inadequate excuse for the late application.
  11. Secondly, the effect of refusing this application will be that the trial proceeds in the absence of the Defendant. But the Defendant has failed to take any part in the preparation for this trial over many months now. Most notably, the Defendant has yet to serve a witness statement. There were a number of directions for service of witness statements. The last order required service of the Defendant’s witness statement by 8 May 2015: that was 5 months ago; yet no witness statement has been lodged, and no application has been made to extend time for service of such a statement. Without a witness statement served in compliance with Court rules, the ordinary rule would be that the Defendant would not have been in a position to offer this Court any oral evidence anyway, at least not without permission of the trial judge.
  12. I infer from the Defendant’s failure to file a witness statement, for which no proper explanation has been given, that he did not intend to take an active personal part in this trial anyway. His conduct in relation to this litigation has been unimpressive for many months now.
  13. Mr Rosen says that the Defendant’s absence will put Mr Rosen in difficulty in obtaining instructions. But Mr Rosen remains on the record. It is not for me to enquire as to the source and adequacy of Mr Rosen’s instructions, but he is plainly satisfied that he is able to be here and to present the Defendant’s case; and that he has instructions to do so. I accept that Mr Rosen may have been in difficulty in taking instructions on detailed points arising during the course of the trial, but the issues in this trial are familiar from the pleadings filed years ago, and Mr Rosen has plainly had the opportunity to take instructions on them in the past. Any difficulty he may now face is an insufficient reason to vacate the trial.
  14. Finally, and in any event, there is no clarity at all about what length of time might be needed before this trial could resume. If the medical evidence is to be believed (and I express no view on that either way), then the Defendant is not going to get better in the near future, or be able to attend trial if it is re-fixed. It is not clear what purpose an adjournment would serve, other than to delay this trial further and create uncertainty for both parties.
  15. For those reasons, I dismiss the application to vacate the trial.
Defendant’s Application re hearsay evidence
  1. The second preliminary matter relates to two notices dated 6 October 2015 in which the Claimant gave notice that it intended to rely on the witness statements of Mr Al Hamoud (who is elsewhere referred to as Abdul Sammad) and Mr Al-Tayyar, as hearsay. Both individuals have provided witness statements to the Court. Both of them are resident (and physically present) in Saudi Arabia. I have no power to compel them to attend this trial, in person or by video-link. I will refer to them as the Saudi witnesses.
  2. The Defendant opposed the application to rely on their evidence in written form, and in the alternative sought an order that he should be entitled to cross examine those witnesses pursuant to CPR 33.4.
  3. The rules permit the Claimant to serve the Notices as it has done. Section 2 of the Civil Evidence Act 1995 applies, and the notices comply with the requirements of CPR 33.2, giving the reason for not calling the witnesses that they were not willing to attend trial despite every reasonable effort having been made to get them here. There is no basis for the Defendant to oppose the CEA notices. The Claimant is entitled to serve them, as Mr Rosen frankly accepted. The issue is one of the weight to be attached to these statements given that the Defendant has had no opportunity to challenge the statements by way of cross examination.
  4. In the alternative, Mr Rosen asked for permission to cross examine the Saudi witnesses, relying on CPR 33.4. In my judgment, that application was misconceived. CPR 33.4 enables another party to call a particular witness to be cross examined if a Civil Evidence Act notice has been given that the particular witness is not to be called. But in circumstances where the Claimant, as here, wanted to but could not get the witnesses to Court, because they were unwilling to attend, there is no point making an order under CPR 33.4, because the witness will not be coming to Court, regardless of which party wishes them to be there.
  5. I therefore refused the Defendant’s second application relating to the hearsay evidence.
  6. I record here that there remained some possibility that the two Saudi witnesses might have attended the trial by video link from Riyadh, notwithstanding the various indications of unwillingness, and the Claimant continued to try to make that happen. The Claimant’s representatives communicated with the Saudi witnesses and set a time for them to appear by video link from a location in Saudi Arabia. In the event, neither witness attended that location. That meant that the Civil Evidence Act notices became operative and the two statements were admitted as hearsay. I will come back to them later.”
Defendant’s application to rely on affidavit evidence
  1. As mentioned, the Defendant has not submitted a witness statement. Mr Rosen sought to rely on an affidavit filed by the Defendant in response to an earlier application by the Claimant for a freezing order in connection with this claim. That affidavit was dated 28 June 2013, sworn and signed by the Defendant.
  2. The Claimant resisted only on the basis that the affidavit should not be treated as a substitute for a witness statement, which it was plainly not.
  3. That was in my judgment the correct approach. I gave Mr Rosen permission to refer to the affidavit, both in cross examination of Mr Shingles, the Claimant’s lead witness, and in submissions on behalf of the Defendant. That affidavit is part of the evidence in this case. How much weight it should carry is a matter for me, as I made clear to Mr Rosen.

(In the event the defendant’s case was not accepted and judgment was given for the claimant).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: