ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)
Strand, London, WC2A 2LL
B e f o r e :
| CHERRILOW LIMITED
|- and -
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Mr S Auld (instructed by Grosvenor Law) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Richards:
"Of greater concern, the schedule asserted (at paragraph 9) that Cherrilow had 'disclosed three files of invoices and documents evidencing the costs incurred suggesting that the losses were supported by documentary evidence' when that was not in fact the case."
"It is asserted in para 62.14 of the skeleton argument that the statement as to disclosure in para 9 of Cherrilow's schedule of 28 July 2011 was untrue. The court proceeded on that basis, in the context of the applicant's case [skeleton paragraph 68] that the judge's acceptance of the figures in the schedule amounted to a serious procedural irregularity. Submissions are required as to the matters set out in paragraphs 9 (2)-(4) of Messrs Grosvenor Law's letter of 1†December 2011."
"7 There has been no procedural irregularity or unfairness whatsoever. On the contrary, Cherrilow's claim for consequential loss was pleaded and dealt with properly in Mrs Hersham's witness statement. The items of loss and specific figures were clearly identified. Full and very substantial disclosure was given, including hundreds of documents relating to the vast expenditure at Fawley Court. Mrs Hersham gave evidence on oath at trial in accordance with her witness statement and the applicant's counsel specifically took Mrs Hersham to the relevant part of her witness statement and expressly said he would return to deal with it in detail later but then, for reasons which have never been explained, chose not to do so. Mr Sewell who had signed a statement of truth on the particulars of claim also gave evidence on oath; the applicant chose not to cross-examine him about this aspect either.
8 The suggestion that the applicant was unable to cross-examine Mrs†Hersham about these matters is complete nonsense. There were literally hundreds of documents in the trial bundles and many more which the applicant's solicitors had chosen not to put into the court bundles to which the witnesses could have been taken. It is perfectly clear that the applicant, for his own tactical purposes, chose not to cross-examine.
9 Cherrilow produced a schedule as part of closing submissions which removed some of the consequential loss claims. It did so in the circumstances where the evidence on oath as to these aspects was unchallenged. The applicant then asked the learned judge for permission to put in further written submissions after the trial. This was granted and the applicant did so. No application was made to recall Mrs Hersham, even though she was there throughout. No application was made for further disclosure. There was no unfairness whatsoever. The position was entirely the applicant's own making.
10 Moreover, despite the careful and detailed correspondence from the respondents, including most recently the respondent's letter dated 6†December 2011 inviting the applicant to confirm the correct position with the Court of Appeal, the applicants completely failed to deal with the content of this correspondence or to deal properly or at all with the matters raised in the Court of Appeal's directions. The applicant has now expressly or impliedly admitted that its initial presentation to the Court of Appeal was false but has not corrected the inaccuracies and continues to try to advance this alleged ground on a false or misleading basis."
"The claimant contends that the above finding was extraordinary in circumstances in which: (i) there was no documentary evidence from Mr Butler-Creagh to challenge; (ii) Ms Hersham qualified the figures she referred to both in her statement and in oral testimony and that she should not be held to those figures until the KPMG report was adduced (iii) the judge held that Mr Butler-Creagh was not given an opportunity to test the figures referred to in Cherrilow's revised schedule."
"The complaint at paragraph 67.3 of the skeleton that the judge had held that Mr Butler-Creagh had had no opportunity to test the figures in the schedule appears to relate to the judge's observation in paragraph 112 of the judgment as to the position at the end of the oral process. Is it contended that the process thereafter ordered by the judge equally gave Mr Butler-Creagh no opportunity to test the figures."
Order: Application granted.