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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Scriven v Scriven [2014] EWHC 186 (Ch) (31 January 2014) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2014/186.html Cite as: [2014] EWHC 186 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Claim No HC12D01427 Court 4 Rolls Building Fetter Lane London EC4A 1NL
		31 January 2014

MR JUSTICE BARLING:

1. In the course of counsel's openings it emerged that the first, second and third defendants had made an application for specific disclosure from the claimant, having served a draft schedule of the material they were seeking on the claimant's solicitors on 15 January 2014, the day before the hearing began. Also in the course of openings, the fourth defendant gave written notice pursuant to paragraph 27.2 of the Practice Direction to CPR Part 32 (to be found at pages 1010 to 1011 of the current edition of the White Book) that the content of certain documents in the trial bundles, disclosed by the claimant, were not admitted.
2. At the outset of Day 3 of the hearing, before his client was called to give evidence, Mr Weatherill QC for the claimant stated that he proposed to deal with those matters by way of a further witness statement from the claimant. In the event the witness statement was supplied to the other parties towards the close of play on Day 4.
3. At the beginning of Day 5, Mr Bogle for the first, second and third defendants, and Ms Sandells for the fourth defendant, made clear that they had objections to the new witness statement. I heard submissions in relation to those objections at the outset of Day 8. It emerged at that stage that Mr Bogle was withdrawing his clients' request for the specific disclosure contained in the draft schedule supplied on 15 January. Mr Bogle maintained his objections to the new witness statement and adopted Ms Sandells' submissions thereon.
4. Having heard argument from Mr Weatherill and Ms Sandells, I indicated that all the parties should proceed on the basis that the witness statement would be admitted and that a short ruling would be given in due course. This is the ruling.
5. I should say that Mr Weatherill accepted, at the first mention by him of the witness statement, that if it were to be introduced in evidence, the other parties should be given the opportunity to have Mr Edward Scriven, the claimant, recalled for the purpose of his being cross-examined on its contents. Mr Weatherill also accepted in the course of submissions that certain paragraphs in the witness statement relating to the companies Tamengo Limited and Warrendene Limited, namely paragraphs 38 to 42 inclusive, could be deleted.
6. Subject to that, his application was to put in the whole witness statement and some 88 pages of exhibits.
7. Ms Sandells strenuously objected to much of the witness statement. She was, as I understand it, prepared to accept that some of the passages in the statement were related to the documents in respect of which the notice under the Part 32 Practice Direction had been given, and/or were related to the specific disclosure originally sought by Mr Bogle's clients by way of the draft schedule.
8. While she made a number of specific points about earlier paragraphs, I believe it is fair to say that her main attack was on paragraphs 38 to 59. She submitted that those paragraphs were covered by neither her client's notice nor Mr Bogle's application, and should not be allowed.
9. As I have said, Mr Weatherill volunteered the removal of paragraphs 38 to 42. As for paragraph 43 onwards, Ms Sandells submitted that if the claimant had wanted to introduce and comment on the documents discussed in those paragraphs, he should have done this in his original witness statement, rather than take a second bite of the cherry.
10. Ms Sandells was particularly concerned that there is little, if anything, in the claimant's main witness statement about the work he claims to have done at home in relation to London Tombs Ltd after March 2007 and into 2008. The witness statement expands on this considerably and describes various financial forecasts and projections which are said to have been produced in that period, including one for the Oliver Twist Experience. This, she suggests, is to expand enormously upon one short answer that the claimant gave in cross-examination, at a time when the witness statement must already have been in an advanced stage of preparation. Ms Sandells also points out that the expert witnesses have not seen the documents in question and may well need to do so if they are allowed to go in.
11. There is some force in Ms Sandells' objections. There is no question but that she and Mr Bogle will have to be given an opportunity to cross-examine the claimant on the contents of the new witness statement if it is put in, and it may well be that the experts will be asked to comment on the material as well.
12. I have to consider these factors along with other considerations which are material to the exercise of the court's case management discretion, and I must do so bearing in mind also the overriding objective of dealing with the case justly, and all the factors encompassed in that phrase, as set out in CPR Rule 1.
13. While the court will not hesitate to exclude material where that is clearly appropriate, I am of the view that here I should admit the witness statement. The main considerations which, in my view, outweigh the powerful points put by Ms Sandells are these:

(a) First, a significant part of the material in the witness statement is probably justified as being in response to the fourth defendant's notice and the other defendants' requests for specific disclosure.

(b) Second, whilst there is certainly a quantity of material which is not so attributable - the last one-third or thereabouts of the witness statement - some of this is of a kind which could ordinarily have been introduced by way of supplementary questions in examination-in-chief.

(c) Third, the scale of this case is already considerable. The time estimate of 13 days was never realistic. It is now effectively Day 13 or Day 14, and we still have a long way to go. Given the non-availability of experts, it is now virtually inevitable that the case is going to have to be part- heard, quite possibly for some time. In these circumstances, I consider that this material will not add significantly to the overall length of the trial, nor create any significant disruption to a timetable already wildly distant from its estimate, nor unduly prejudice any party.

(d) Finally, this is to a large extent a family dispute of a particularly unfortunate kind. The claimant is suing his two sons as well as other parties. Their relatives, friends and acquaintances have been drawn into the dispute as witnesses for one side or another. It is classically the kind of case which should have been resolved otherwise than in court proceedings, but regrettably that has not happened. The exclusion of evidence, not on its face irrelevant or embarrassing, can create a strong sense of injustice. There is generally an inclination, all other things being equal, towards inclusion rather than exclusion. This consideration is, I believe, of particular weight in the present case.

14. I therefore admit the new witness statement in accordance with my earlier indication.

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