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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Trico Limited v Buckingham [2020] JRC 106 (04 June 2020) URL: http://www.bailii.org/je/cases/UR/2020/2020_106.html Cite as: [2020] JRC 106 |
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Dispute - decision in respect of specific issues
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
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Between |
Trico Limited |
Plaintiff |
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And |
Anthony Buckingham |
First Defendant |
Advocate H. Sharp for the Plaintiff.
Advocate J. S. Dickinson for the Defendant.
CONTENTS
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Paras |
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1. |
Introduction |
1 |
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2. |
Background |
2-13 |
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3. |
Whether Mr Atherton should be summoned to attend for cross-examination and by whom |
14-39 |
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4. |
Evidence by video link |
40-46 |
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5. |
Costs |
47-48 |
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6. |
Miscellaneous issues |
49 |
judgment
the MASTER:
1. This judgment contains my decision in respect of the following issues:-
(i) whether Mr Paul Atherton should be summoned to appear for cross-examination and if so who may cross-examine him;
(ii) whether the defendant and his partner may give evidence by video link;
(iii) what costs order should be made in respect of a summons issued by the plaintiff seeking issue of a subpoena against Standard Bank (Jersey) Limited for production of certain documents.
2. This is a long running and bitter dispute. The background to the matters in issue have most recently been set out in the judgment of the Court of Appeal dated 12th May, 2020 reported at Trico Limited v Buckingham [2020] JCA 067. I adopt paragraphs 2 to 11 of that judgment for ease of reference.
3. By reference to the issues I have to decide, the following paragraphs are relevant and I therefore set them out in full:-
4. It is also relevant to refer to certain earlier procedural steps in this matter.
5. By an Act of Court dated 13th January, 2020 I made the following directions at paragraphs 4 to 6 as follows:-
""4. Any notices to adduce hearsay evidence by any party shall be served no later than 5:00 p.m. Friday, 24th January, 2020;
5. The issue of whether Mr Atherton is required to appear in person at trial is stood over pending any application by any party to summon Mr Atherton to give evidence at trial;
6. All parties shall by no later than 14 days before trial identify which witnesses they intend to produce at trial for cross-examination."
6. The defendant duly served a hearsay notice on 28th January 2020. The relevant part of that hearsay notice is paragraph 2.1 which states as follows:-
"2. At the trial of this action the Defendant intends to adduce as hearsay evidence:-
2.1 The statements made in his following Affidavits (or paragraphs thereof):-
2.1.1 the fourth sentence of paragraph 10 of his Fourth Affidavit dated 30th January; and
2.1.2 paragraphs 5.7, 6.3, the fifth sentence of paragraph 38 and the third sentence of paragraph 44 of his Fifth Affidavit dated 30 January 2019."
7. Paragraph 5.7 of the defendant's Fifth Affidavit states as follows:-
"5.7 The position of Paul Atherton ("Paul") was made clear in a letter from Carey Olsen (Paul's Advocates) to Dickinson Gleeson ("DG") (my Advocates) dated 14 September 2018 (which is at [ALRB5/51-52]). It stated inter alia: -
"2. Mr Atherton has no knowledge of what became of the Side Letter after those initial drafting stages. Nor whether it was executed by Mr Buckingham (which we assume is most likely) and, if so, what caused or prompted him to execute it. Nor whether the side letter was executed by somebody else (as the directions in the Act of Court of 13 August 2018 suggest is your client's case)."
(The "initial drafting stages" to which Paul referred were completed on 12 February 2014)."
8. Although the notice refers to paragraph 3 of Carey Olsen's letter of 14th September, 2018, this is said to be 'inter alia'. In my view the pertinent paragraphs are paragraphs 2 and 3 which state as follows:-
"2. In relation to Mr Atherton's response to the Letter Before Action of 9 August 2018 (the "LBA"), we are instructed that Mr Buckingham knows very well the nature and extent of our client's role in relation to the preparation of the side letter. Mr Buckingham is also very much aware that Mr Atherton was not involved in the side letter beyond the initial drafting stages.
3. Mr Atherton has no knowledge of what became of the side letter after those initial drafting stages. Nor whether it was executed by Mr Buckingham (which we assume is most likely) and, if so, what caused or prompted him to execute it. Nor whether the side letter was executed by somebody else (as the directions in the Act of Court of 13 August 2018 suggest is your client's case)."
9. On 1st May 2020, the plaintiff served a hearsay notice which states as follows:-
"1. The Carey Olsen letter of 23rd April 2020 at paragraph 3(b): Mr Atherton does not deny being at the meeting at the defendant's house on 13th February 2014. Mr Atherton does not claim he was elsewhere. Rather, his recollection is "neutral" on the point.
2. The Heritage Oil emails of 6th April 2020. These emails confirm that Heritage Oil never created a single invoice prior to 2018 and that all company directors had the same authorisations to sign payment instructions and were of the same ranking.
3. The two affidavits of Mr Harris dated 7th April 2020 and 9th April 2020.
4. The Heritage Oil Letter dated 18th June 2019 at paragraph 4.2 confirming that the company took no legal advice in respect of the Advisory Agreement and at paragraph 4.8 confirming that the company staff including Mrs Hollis had no knowledge of any pre-signed pieces of paper."
10. The plaintiff also served a notice attacking the credibility of inter alia Mr Atherton. Paragraphs 1 to 5 of this notice which I refer to as the credibility notice state as follows:-
"1. Mr Atherton does not deny being at a meeting with Mr Buckingham at Portelet on 13th February and does not claim to have been elsewhere. He merely asserts he cannot recall it: see Carey Olsen correspondence.
2. The English High Court decision in Tullow v Heritage Oil records that Mr Atherton has lied on oath in Court on a previous occasion and was an unimpressive witness.
3. The defendant's skeleton argument of 22nd October 2018 described the Carey Olsen letter of 9th September 2018, written on Mr Atherton's instructions as to his lack of involvement in the execution of the Side Letter, as "highly tendentious".
4. The defendants' lawyers sent Mr Atherton pre-action correspondence in August / September 2018 that made it clear that if the defendant is found liable to pay Trico, reimbursement would be sought by the defendant from Mr Atherton by means of a civil claim.
5. The defendant has declined to disclose his 2018 communications with Mr Atherton and also declined the Master's invitations to seek an order that Mr Atherton be summonsed to Court to give evidence. It is the plaintiff and not the defendant who has sought an order that Mr Atherton produce his documents relevant to this case."
11. In respect of the hearsay notice of the plaintiff, this notice was served outside the time limit set out in the Act of Court of 13th January 2020. However, insofar as relevant to the cross-examination of Mr Atherton, the notice relates to a letter only served on 23rd April 2020.
12. The credibility notice, pursuant to Rule 6/20 3(2) of the Royal Court Rules 2004 (the "Rules"), as amended, should have been served within 28 days of service of the hearsay notice. The matters referred to in paragraphs 2 to 5 of that notice could have been the subject of a hearsay notice served within 28 days of the plaintiff's hearsay notice as they all predate that notice. However, paragraph 1 could not have been relied upon because this is clearly a reference to Carey Olsen's letter of 23rd April 2020.
13. It is also right to record that prior to the hearing, I raised with the parties the issue of whether the court of its own motion had power to compel a witness to attend where that witness was not being called by either party. Ultimately this issue was overtaken by events because shortly before the hearing both parties issued their own summonses seeking to require Mr Atherton to attend for cross-examination. I wish to observe, having heard from both parties, the question of whether the Court can compel a witness to attend of its own motion is a matter for another day as it is complex and no longer necessary for me to resolve.
14. In relation to this issue, the starting point is Articles 5 and 7 of the Civil Evidence Act (Jersey) 2003 which provide as follows:-
15. Pursuant to the power to make Rules referred to in Article 5, the relevant rules are now found in Rule 6/22 as follows:-
16. In respect of a credibility notice, the Rules deal with that in Rule 6/23 which provides as follows:-
17. It is also appropriate to refer to Rule 6/20 (7A) which provides as follows:-
18. In relation to the plaintiff's application to summons Mr Atherton for cross -examination, this was made more than 28 days after service of the hearsay notice in breach of Rule 6/22(2) and so prima facie is out of time. However, the first ground relied upon to justify cross-examination in paragraph 1 of the credibility notice concerned the Carey Olsen letter of 23rd April 2020.
19. Paragraph 1 of the credibility notice could not therefore have been served within 28 days of the defendant's hearsay notice. As it was served within 28 days of the Carey Olsen letter, there is no reason not to permit admission of paragraph 1 and to extend time under Rule 6/23 as I am empowered to do under Rule 1/5. To be fair to Advocate Dickinson he did not seek to argue otherwise.
20. In respect of paragraphs 2-5 of the credibility notice although this part of the notice is out of time, I rule that this part of the notice is also admissible. I do not consider in this case allowing the remainder of the credibility notice to be admitted causes prejudice to the defendant because the plaintiff has always made it clear that he intended to attack Mr Atherton's credibility on the basis of the matters now set out in paragraphs 2-5. The contents of the credibility notice therefore simply confirm matters foreshadowed in skeleton arguments filed with the Court and the defendant much earlier in time.
21. I next consider the application for cross-examination. I start by looking at what is permitted by Rule 6/22. What is allowed is cross-examination only on the contents of a statement. This is clear from the language in the rule itself. I was confirmed in this conclusion by Douglas v Hello Ltd [2003] EWCA Civ 332 at paragraph 20 which states as follows:-
22. The statements relied upon by the defendant in his hearsay notice is that:
(i) Mr Atherton was not involved in the side letter beyond the initial drafting stages;
(ii) That Mr Atherton has no knowledge of what became of the side letter after those initial drafting stages;
(iii) Mr Atherton has no knowledge of whether it was executed by Mr Buckingham and, if so, what prompted him to execute it; and
(iv) Whether it was executed by anybody else.
The chain of communications about the drafting of the side letter between Mr Atherton and Mr Corbin ended at 16.11 on 12th February with an email from Mr Corbin. In other words, it is the defendant's case in his hearsay notice that Mr Atherton was not involved in any alleged execution of the signed letter on 13th February 2014 or subsequently.
23. In my judgment, this is the content of the statement relied upon. Insofar as the plaintiff's application is made under Rule 6/22, it is therefore limited to cross-examining Mr Atherton on execution of the side letter, i.e. what I described in argument as 'the meeting issue' rather than the meaning of the side letter or the 'side letter issue'.
24. This conclusion is supported by the plaintiff's reliance on paragraph 3b of Carey Olsen's letter of 23rd April, 2020 in its credibility notice in paragraph 1. Paragraph 3b of the letter is as follows:-
"b. In terms of Part A, paragraph 3 generally, our client confirmed in his first letter to the parties dated 23 January 2020, that he was in Jersey on 13 February 2014. He simply cannot remember if he attended a meeting at the defendant's house that evening as has been alleged by Trico Limited. At best Mr Atherton's recollection on this point is neutral, he cannot confirm either way if he was or was not in attendance."
25. This letter is therefore relevant to whether or not the side letter was executed on 13th February. The obvious inference is that it is inconsistent with Carey Olsen's letter of 14th September 2018. The former states that Mr Atherton was not involved after 12th February 2014; the latter states that Mr Atherton cannot remember. The issue explored by both however is the same namely Mr Atherton's involvement in any execution of the side letter.
26. The next question however is whether cross-examination by Mr Sharp for the plaintiff can be limited to the meeting issue only or whether he is entitled to cross-examine Mr Atherton about the meaning of the side letter, should he wish to do so. In my judgment he can.
27. Firstly, in setting the scene to explore whether or not Mr Atherton was present at any meeting on 13th February, Mr Sharp may well wish to explore what communications there were between Mr Atherton and the defendant prior to any such meeting. It will be very difficult for Mr Sharp to separate out his questions to limit them to ascertaining the relevant factual background leading up to what may have happened on 13th February, from questions about the meaning of the side letter. It will certainly be impossible for him to separate out any answers given by Mr Atherton which go to both issues. I do not think it fair to restrain the plaintiff or Mr Sharp's cross-examination in this way. The two issues that have been identified are central to the dispute between the parties and it would be unfair to restrict cross-examination to only one of those issues.
28. The next argument advanced by Advocate Dickinson for the defendant was that Mr Sharp could not cross-examine because the plaintiff had served a hearsay notice relying on Carey Olsen's letter on 23rd April 2020. However, that hearsay notice was served at the same time as the credibility notice. In my judgment the hearsay notice served by the plaintiff was served out of caution as it goes no further than the credibility notice which I have ruled is admissible. Strictly speaking, it was not necessary for the plaintiff to serve a hearsay notice in order to serve a credibility notice. I therefore do not consider it fair to penalise Mr Sharp to restrict his cross-examination because he served a hearsay notice at the same time as the credibility notice out of an abundance of caution.
29. The next issue to consider is whether the defendant, through Advocate Dickinson, is permitted to cross-examine Mr Atherton. This was the most contentious issue between the parties. The defendant has clearly served a hearsay notice stating that Mr Atherton's involvement with the side letter ceased on 12th February, 2014, and that he was not involved in any alleged events on 13th February, 2014. This is clearly a challenge to the plaintiff's primary case on the meeting issue. I do not therefore see how Mr Atherton can be cross-examined by Advocate Dickinson on the meeting issue. To permit cross-examination would drive a coach and horses through Article 5 of the Civil Evidence (Jersey) Law 2003 and Rule 6/22 of the Rules. The defendant has made his case clear that Mr Atherton was not involved at any meeting on 13th February 2014 by his hearsay notice and so cannot resile from that hearsay notice. I also observe that the Re-Amended Answer at paragraph 9.6 also pleads the same reliance on the Carey Olsen letter as is set out in the defendant's hearsay notice.
30. I should add for the sake of completeness that there was no argument before me that the defendant and Mr Atherton should be treated as a hostile witness and cross-examination was not sought on that basis. If that becomes the position then that is a matter for Advocate Dickinson to make any such application to the trial judge at trial.
31. In respect of the meaning of the side letter, however my conclusion is different. I do not consider that the meaning of the hearsay notice served by the defendant was intended to advance a case based on any statements made by Mr Atherton about the meaning of the side letter. There are no such statements in Carey Olsen's letter of 14th September 2018. At best, the letter indicates that Mr Atherton was involved in the drafting (which is not in dispute between the parties). It does not contain any statement about what the side letter means. Accordingly, I consider it would be unjust to construe the defendant's hearsay notice to mean that the defendant cannot cross-examine Mr Atherton on the meaning of the side letter.
32. I should add in that regard that, at the time the defendant's hearsay notice was served, it pre-dated the judgment of the Court of Appeal and its careful analysis of possible meanings of the side letter, in particular as recorded at paragraphs 63 and 87 of its judgment set out above.
33. As to how cross-examination should occur, given that Mr Atherton was drafting for Heritage and/or the defendant in the sense that he was not drafting for the plaintiff, I consider that cross-examination by Mr Dickinson for the defendant on the meaning of the side letter should take place first with Advocate Sharpe for the plaintiff, then cross-examining Mr Atherton at large both on the meaning of the side letter and the meeting issue. Advocate Dickinson for the defendant is then permitted to conduct a re-examination of Mr Atherton. This cross-examination should occur after all other witnesses for both parties have been questioned.
34. Whether any party chooses to cross-examine as permitted and to what extent is of course a matter for that party and their advocate. All this judgment does is give that party permission to do so. This judgment of course also does not fetter in any way the discretion of the Bailiff, who will be the presiding trial judge, as to whether particular questions are permissible.
35. The conclusion I have reached is, in my judgment, confirmed by the observations of Fletcher Moulton LJ in the case of In Re Enoch Zaretsky Rock & Co Arbitration [1909] 1KB 327.
36. While the English Court of Appeal in that case confirmed that a judge at that time did not possess the power to call a witness of its own motion (which I observe is now an open question in relation to the Civil Procedure Rules) at page 333 the judgment discussed the situation where a judge has called a witness with the acquiescence of both parties and has done so:-
37. The judgment then continued:-
38. In my judgment that is the situation that exists here in relation to the meaning of the side letter. Mr Atherton is not a witness of either party on that issue and neither party wishes to take responsibility for vouching his personal credibility in relation to the meaning of the side letter. The conclusion I have reached is therefore consistent with this dictum in allowing both parties to question Mr Atherton on the meaning of the side letter.
39. I should also deal with the plaintiff's application being outside the time limit in Rule 6/22 and from the perspective of both parties their more general requests to cross-examine are relatively late in the day. I accept that applications to cross-examine could have been made earlier and that trial is later this month. However, the lateness of the applications is not a basis to refuse the applications for the following reasons. Firstly, the question of cross-examination has not just arisen as it was raised as a question by me last January which has not been resolved since then. It is not a new issue. Secondly, the plaintiff's application is brought in a relatively short timeframe after Carey Olsen's letter of 23rd April 2020. Thirdly, the judgment of the Court of Appeal on the meaning of the side letter makes cross-examination on that issue relevant. Fourthly ordering Mr Atherton to attend will not prejudice the trial dates. Mr Atherton is in the island and possible plans to travel referred to in Carey Olsen's email of 22nd May 2020 are not a sufficient justification not to attend.
40. Advocate Dickinson initially applied for the defendant and his partner to give evidence by video link because they were locked down in Devon due to the Coronavirus pandemic. By the time of the application before me, the defendant and his partner were now both in Jersey having returned to the Island by private jet. Nevertheless, because of fears about the Coronavirus pandemic they both wanted to give evidence by video link.
41. In respect of the relevant legal principles, the parties were not in dispute and this was touched upon in Brazil v Durant [2012] 1 JLR 31. The most pertinent summary was at paragraph 4:-
42. This led to the court at paragraph 13 to allow all evidence to be given by video link.
43. In relation to the defendant's partner, Ms Sonowska, she does not want to attend in person because she is primarily responsible for looking after the young children of her and the defendant who are under the age of five. In relation to this request, I agree that cross-examination by video link is appropriate for these personal reasons. This is because in my judgment the evidence of Ms Sonowska is relatively short and focuses on one issue, namely her statement that she was with the defendant on the afternoon/evening of 13th February 2014, and that no one else attended or called at the house in Jersey for a meeting.
44. In respect of the defendant, Mr Dickinson explained that the defendant was also concerned about the risk of catching coronavirus because he was close to the age of being a vulnerable person. He did not therefore wish to undergo the additional risk of having to attend in person in the Royal Court in order to give evidence. There was no medical evidence before me about any medical condition of the defendant or that he was particularly vulnerable to the coronavirus pandemic. Nor was there any evidence about the social distancing arrangements that have been or are being operated by the defendant and his partner since the pandemic began.
45. In my judgment, the central witnesses to this dispute have always been Mr Ruane and Mr Corbin and the defendant (and Mr Atherton). In respect of the defendant's concerns, I am sure that arrangements can be made to enable the defendant to park near to the Royal Court and to enter the relevant courtroom social distancing as far as possible from anyone. Such arrangements are already in place for court hearings. In respect of evidence by video link, whether to permit it should be judged by reference to the interests of justice as between the parties and in the wider sense of whether management of litigation would best be served by evidence via video-link. In respect of a dispute where much will turn on cross-examination, I do not consider that the threshold in the Polanski v. Condé Nast Publications Ltd. [2003] EWCA Civ 1573 case referred to by Commissioner Page as cited above is met. There will not be a level playing field on the one hand with the defendant, through Advocate Dickinson cross-examining the plaintiff's witnesses in person, if the defendant was only able to be cross-examined by video link. Even though technology has improved since 2012, there is still a difference in terms of assessing evidence face-to-face across a courtroom from assessing evidence given by video link. In this case, there are attacks on credibility and major differences of recollection. I have therefore concluded that the interests of justice, and the task facing the Jurats in particular, will be best assisted by all the key protagonists being present for cross-examination.
46. I should make it clear that this has not been an easy decision because individuals including the defendant may well have understandable and genuine concerns about the coronavirus pandemic and the risks of coming to court. My decision also does not prevent the defendant at the beginning of trial from renewing his application, depending on the circumstances prevalent at that time and any evidence relied upon, to give evidence by video link. However, the reasons advanced to date do not persuade me that the defendant should not attend in person to give his evidence. Finally, I should make it clear that the defendant is only required to attend Court to give evidence and otherwise may observe the conduct of proceedings via a video link.
47. In relation to the costs of the subpoena, the defendant's argument was that the plaintiff jumped the gun and should first have asked Heritage to obtain the documents from its bankers (Standard Bank (Jersey) Limited) before issuing this summons. However, when the appeal before the Court of Appeal was originally due to be heard, the defendant's consent to relevant documents being disclosed was not immediately forthcoming. Advocate Dickinson fairly accepted that consent to disclosure to discovery of the relevant documents sought was delayed because the defendant wished to ensure he could inspect the originals of the side letter. Consent was therefore withheld to discovery of the documents sought being provided on a voluntary basis
48. In my judgment, the two matters were not connected and, as pointed out in argument, what occurred was a tit-for-tat approach. This is indicative of the bitterness between the parties that exists and which I have made clear on a number of occasions is unacceptable. In my judgement, this shifts the balance in deciding what costs orders to make. While the plaintiff before issuing his summons should have repeated his earlier request to the defendant to consent to Standard Bank producing the same documents previously asked for, the plaintiff's conduct was coloured by the previous approach and the tit-for-tat approach taken by the defendant. In my judgment in the round, costs in the cause therefore best reflects the justice of the situation.
49. It is also right to record that I have also approved the plaintiff relying on the affidavits of Mr Harris, referred to in the Court of Appeal's judgment. I also accepted that it was not necessary at this stage for the parties to produce composite statements. Rather the matter had been dealt with by the parties agreeing after the judgment of the Court of Appeal that further supplemental statements could be produced by either party if they wished to do so. This has occurred in the case of the plaintiff. At this stage, the defendant has chosen not to provide any further statements and has also reserved his position as to whether any parts of the plaintiff's supplemental statements should be excluded.
