England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Rolls Building Fetter Lane London EC4A INL
		23rd July 2014

Wednesday 23^rd July 2014

APPROVED JUDGMENT

JUDGE HODGE QC:

1. This is my preliminary extemporary judgment on an appeal by the defendants, Mr Jaswant Singh Dhillon and his wife Mrs Maidie Mohinder Kaur Dhillon, against an order of Master Marsh dated 7^th April 2014. The order from which the defendants seek to appeal was effectively one refusing relief from the sanction imposed by an earlier order of Master Marsh made on 18^th September 2013. This is my preliminary extemporary judgment on an application (included within the appellant's notice) by the appellants/defendants to adduce fresh evidence that was not before the Master.
2. By an order made on 12^th June 2014 Mr Justice Birss directed a composite hearing, first of the appellants' application for permission to appeal Master Marsh's order and (subject to permission being granted) of the hearing of the substantive appeal. This is that rolled-up hearing.
3. On this appeal Mr Richard Ritchie (of counsel) appears for the appellants and Mr David Mayall (also of counsel) appears for the respondent/claimant, Mr Bagga Singh Sandhu, who is the maternal uncle of the first appellant.
4. The substantive litigation concerns a partnership dispute between the parties. By an order made by Deputy Master Jefferis on 13^th June 2013 it had been ordered (by paragraph 3) that the defendants should give the claimant and his advisers access to all the books and records of the two relevant partnerships and should afford the claimant and his advisers the opportunity to take copies of all and any parts of such books and records within 14 days of this order being served on the defendants' solicitors. For that purpose, inspection was to take place at the offices of the defendants' solicitors; and the parties' solicitors were directed to liaise as to a convenient date and time within the 14-day period. That order had been made at a hearing where the defendants had not appeared.
5. The order included a declaration that the two partnerships in question had been dissolved on 26^th July 2012. That order was not complied with by the defendants (and appellants). As a result, the claimant (and respondent) applied for a supplemental order which, in the event, was made by consent. That order was dated 18^th September 2013 and it was made following the Master having read a letter from the defendants' solicitors, who at that time were a firm called Fishman Brand Stone (or 'FBS'). The consent order provided that unless the defendants (now the appellants) gave disclosure of the books and records of the two partnerships by making them available for inspection and copying at the offices of FBS at a date no later than 14 days after the date of service of the order by the solicitors for the claimant on the solicitors for the defendants, then the defendants should be debarred from participating in the taking of the partnership accounts ordered by Deputy Master Jefferis on 13^th June 2013.
6. That order, although made by consent, was not sealed until 20^th September 2013. It was apparently served by the court on the parties' solicitors, although before the Master he proceeded expressly on the footing that the sealed order had not been served on the defendants' solicitors until it was received under cover of a letter dated 7^th October 2013. That letter had been sent by fax and by post, and therefore the Master proceeded on the footing that the time for compliance had expired on 21^st October 2013.
7. The appellants assert that one of the reasons for the Master's refusal to grant relief from sanctions was that he was not satisfied that the failure to comply with the order had been caused by the defendants' solicitors. Reference is made to paragraph 44 sub-paragraph (iv) of the Master's judgment. I should say that although the Master's order was dated 7^th April 2014 (following a hearing that had taken place on 4^th April 2014), the Master's written reasons for his decision were not handed down until 9^th May 2014. On 24^th April 2014 Master Marsh had extended time for appealing his order until 21 days after the date that his formal reasons were handed down. Thus it is that although the appellant's notice seeking to appeal the Master's order of 7^th April was not filed until 29^th May 2014, in fact the appeal was brought within time.
8. The appellant's notice includes (in part C of section 9) an application for an order that the defendants have permission to adduce further evidence in the form of a witness statement (1) exhibiting the correspondence relating to this action obtained from a file handed by FBS to the defendants (and containing correspondence between that firm and the defendants), and (2) explaining the events which occurred between the defendants instructing their present solicitors (PKP French) and the claimant's inspection of the accounting records of the partnerships.
9. The evidence in support of the application is contained in section 10. The Master is said to have criticised the defendants for not producing the correspondence file of FBS. The file of correspondence had been obtained from FBS on 29^th October 2013. This evidence is said strongly to support the first defendant's evidence, and to dispel the suggestion that the defendants were being, or were causing FBS to be, obstructive. It is said to be credible. The evidence was available at the time of the hearing before the Master, but it was not produced as it is said that there was limited time to assess it fully in time for the hearing.
10. The first defendant's evidence was not challenged, and it is said to have been supported by the correspondence produced in evidence by the claimants' solicitors; and it is said that there was already voluminous evidence before the court.
11. It is said that the Master took into account what he perceived to be delay between the defendants instructing their new solicitors and the claimant's inspection of the accounting records of the partnership as evidence of obstructiveness on the part of the defendants. It is said this was not an issue raised prior to the hearing, and it is wished to address that issue. It is said that that is in part necessary because the correspondence produced by the claimant's witness, his solicitor Mr Thakrar, does not exhibit the full run of correspondence but tends to produce his letters out, but not those received. It is said that such evidence would be credible, and shows that there was only limited, if any, delay once PKP French, the new solicitors, had been instructed.
12. Mr Ritchie has filed a written skeleton argument on behalf of appellants in support of their application to adduce further evidence. That skeleton is dated 10^th June 2014. As to FBS's file, the appellants' primary submission is that the evidence adduced before the Master was sufficient to establish their contention that the fault in arranging inspection of books and records lay with FBS. Reference is made to a Court of Appeal decision, the case of Welsh v Parianzahed [2004] EWCA Civ 1832. That case is cited as an example of a case where the court is said to have been prepared to act on the basis that the defaults were probably not those of the applicant, but those of her solicitors, without the relevant solicitors' file having been produced. In the instant case, it is said that the Master criticised the appellants for not putting in evidence the solicitors' file relating to the case. If, contrary to their primary submission, this is a valid criticism, the appellants seek permission to put the file in evidence under CPR 52.11(2).
13. Mr Ritchie accepts that the considerations relevant to the exercise of this discretion are those set out in Ladd v Marshall [1954] 1 WLR 1489 at 1491. They are: (1) that the evidence could not with reasonable diligence have been obtained for use at the hearing below; (2) that the evidence must be such that, if given, it would probably have had an important influence on the result of the case, although it need not be decisive; and (3) that the evidence was apparently credible, although it need not be incontrovertible.
14. It is said by Mr Ritchie that these are no longer primary rules. The primary rule is said to be CPR 52.11 (2)(b), coupled with the duty to exercise the discretion to admit fresh evidence in accordance with the overriding objective within the Civil Procedure Rules of enabling the court to deal with cases justly and at proportionate cost. Although the Ladd v Marshall criteria continue to govern the admission of fresh evidence, the Court must have regard also to the overriding objective. Mr Ritchie has taken me to the guidance provided by the Court of Appeal in the case of Terluk v Berezovsky [2011] EWCA Civ 1534. The judgment of the Court of Appeal was delivered by Laws LJ, with whom Sir Andrew Morritt, the Chancellor, and Mrs Justice Rafferty (as she then was) both agreed.
15. At paragraph 31 Laws LJ found it convenient first to consider the law relating to the deployment of fresh evidence in civil appeals. The locus classicus was said to be Ladd v Marshall, where the three criteria were articulated by Denning LJ in the terms I have previously set out. At paragraph 32 Laws LJ noted that the admission of fresh evidence was now addressed in the Civil Procedure Rules at CPR 52.11(2), which provides (in part) that unless it orders otherwise, the appeal court will not receive "(b) evidence which was not before the lower court". It was said that the impact of the CPR on the established approach set out in Ladd v Marshall had been considered in a number of cases. It was said to be clear that the discretion expressed in CPR 52.11(2)(b) had to be exercised in the light of the overriding objective of doing justice. The Ladd v Marshall criteria were said to remain important as "powerful persuasive authority", but they did not place the court in a straitjacket. The learning showed, in Law LJ's judgment, that the Ladd v Marshall criteria were no longer primary rules, effectively constitutive of the court's power to admit fresh evidence. The primary rule was given by the discretion expressed in CPR 52.11(2)(b), coupled with the duty to exercise it in accordance with the overriding objective. However, Laws LJ added, the old criteria effectively occupied the whole of the field of relevant considerations to which the court must have regard in deciding whether, in any given case, the discretion should be exercised to admit the proffered evidence.
16. Reference was made to the statement by Sir Andrew Morritt (then the Vice-Chancellor) in Banks v Cox, 17 July 2000, at paragraphs 40 to 41. I quote:

"In my view, the principles reflected in the rules in Ladd v Marshall remain relevant to any application for permission to rely on further evidence, not as rules but as matters which must necessarily be considered in an exercise of the discretion whether or not to permit an applicant to rely on evidence not before the court below."

Mr Ritchie submits that criterion (c), that the evidence is apparently credible, is clearly satisfied. The relevant files are said to be obviously credible as to their contents. As to (a), Mr Ritchie accepts that the file had been available prior to the hearing in the lower court; but he said that there had only been limited time to prepare the evidence in support of the appellants' application between the time when it was realised that Mr Shah's accounts were inadequate, wrong, and contrary to the appellants' expectations, and that, based on those accounts, the respondent was seeking interim payments.

17. I interpose to explain that Mr Shah is an accountant retained by the respondent. It is said by Mr Ritchie that it was not possible to consider the file adequately in the time available. As to (b), the criterion that the evidence must be such that, if given, it would probably have had an important influence on the result of case, Mr Ritchie submits that, given that absence of the file was an important factor relied on against the appellants, it is probable that it would have had an important influence on the outcome of the application for relief from sanctions. In all the circumstances, he submits that permission to adduce the file in evidence should be granted.
18. Mr Ritchie makes an additional submission in paragraphs 9 to 11 of his written skeleton. He concludes his written skeleton by reminding the court that this is an appeal from an interlocutory, and not a final decision; and although the criteria are now the same for both types of appeal, he submits that the discretion to admit fresh evidence should be exercised more readily in the case of an interlocutory appeal.
19. At the time those submissions were prepared, the further evidence sought to be placed before the court had not been finalised. The further evidence was in fact not initially submitted until shortly after 15^th July 2014, which was last Tuesday. The further evidence was sent to the court on Wednesday of last week, 16^th July. The further evidence was originally contained within a witness statement of the appellants' present solicitor, Mr Pankaj Kumar Patel, of 15^th July 2014. Since then, Mr Patel has explained that there were errors in his original witness statement, and he has produced a corrected version of his first witness statement. Thus the additional evidence is now contained within two witness statements from Mr Patel dated 22^nd July 2014. The additional documentation which the appellants seek to place before the court is contained within exhibits PKP1 through to 5 of Mr Patel's first witness statement. The documents extend to over 500 pages, within two lever-arch files.
20. In the course of his oral submission to adduce fresh evidence Mr Ritchie acknowledged that he had to accept that the file from FBS could have been exhibited to a second witness statement submitted to the Master by the first appellant and dated 26^th March 2014; but Mr Ritchie made the point that the first appellant had not been aware that the communications between himself and his former solicitors, FBS, were going to assume the importance that the Master in fact gave to them. Mr Ritchie emphasised the fact that his client's first witness statement had been made on 3^rd March 2014, very shortly after having received, and become aware of the full extent of, the applications being brought by the respondent, and the extent of his challenge to the appellants' view as to the true state of the partnership accounts.
21. For the respondents, Mr Mayall opposed the application to adduce further evidence. He accepts Mr Ritchie's account of the relevant law; but he submits that none of the three Ladd v Marshall criteria are satisfied in the circumstances of the present case. As to the first, Mr Mayall submits that the material now sought to be adduced was clearly available to be put before the lower court.
22. He emphasises that from the outset of the appellants' application, effectively for relief from sanctions, the first appellant had been blaming the appellants' former solicitors, FBS. In sub-paragraph 2(b) of the first appellant's first statement, dated 3^rd March 2014, the first appellant had made it clear that he considered that he had been let down by FBS in not responding to correspondence by Thakrar & Co, the respondent's solicitors, in the way one would expect from a reasonably competent firm of solicitors. In sub-paragraph 2(c) it was said that FBS had never informed the first appellant of the hearing of the claimant's application, which had led to the order of Deputy Master Jefferis dated 13^th June 2014. The first appellant went on to say that not only was he not informed of that hearing, but he was not even advised of its outcome.
23. He said that his next communication with FBS was in respect of the respondent's application, listed for hearing on 18^th September 2014. He says that both his son and he (the first appellant) had made consistent attempts to contact the relevant fee earner at FBS, Mr Stone, without any degree of success. The first appellant said that he inquired whether the appellants' attendance at court on the 18^th was required. He was told that it was not, and that Mr Stone had dealt with it. The first appellant says that he had no idea what Mr Stone meant by that, but it is clear that FBS's failure to attend the hearing had led to an order in the form made; and that subsequent actions, in writing a letter to the claimant's solicitors without having consulted the first appellant at all, had led to the debarring order against him.
24. It was said that the actions and omissions of FBS had placed the first appellant in a very prejudicial, and precarious, position. The first appellant said that he was not informed of the order of 18^th September and/or its contents; and that, having heard from mutual friends and family that the claimant wanted access to the books and records, he had then gathered together the books and records that he could locate in relation to the partnerships and had delivered them to FBS on 8^th October 2013, together with a request made from the claimant's solicitors that his solicitors should contact the claimant's solicitor for access to the records. He referred to page 22 of the bundle, exhibiting a letter dated 27^th September 2013 from the respondent's solicitor. He says that on 8^th October the first appellant had complied with his obligations without even being informed of the contents of the order by FBS. He only became aware of the contents, and serious nature, of the order of 18^th September after he had dis-instructed FBS and had collected his file of papers; and it was at a meeting with the new solicitors, on 29^th October 2013, that he was made aware of the consequences of that order.
25. He notes that it was not until 20^th December 2013 that the claimant's accountant inspected the documents. Under the order of 18^th September the first appellant's obligation had been to make the documents available for inspection and copying at the offices of FBS, which the first appellant had done. Thereafter, it was said to be between FBS and the claimant to make a mutually convenient appointment for inspection.
26. At paragraph 8 it is said that the first appellant understood that, due to the actions of FBS, he could not take part in the dissolution accounts. I take that to be a reference to what the first appellant had been told at his meeting with his new solicitors on 29^th October 2013.
27. Mr Mayall says that it is therefore clear that it was the known to the first appellant that it was a main plank of the appellants' case that they were blaming their former solicitors. Their present solicitors had had the former solicitors' file since 29 October 2013; and it is therefore simply absurd to say that the evidence could not, with reasonable diligence, have been obtained for use at the hearing before the Master. The appellants already had it.
28. In oral submissions, Mr Mayall also submitted that the second witness statement made by the first appellant on 26 March 2014, in the interval between the first and second hearings before the Master, had afforded the appellants ample opportunity, had they so wished, to supplement their evidence by exhibiting relevant extracts from the solicitors' file, had they been so minded to do so.
29. Mr Mayall also disputes that the second of the Ladd v Marshall criteria is satisfied. He submits that it is clear from paragraph 41 of the judgment in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537, reported at [2014] 1 WLR 795, that the fact that there may have been carelessness on the part of the original solicitors of the appellants is not a ground for granting relief against sanctions. Therefore, Mr Mayall submits, the second criterion in Ladd v Marshall is not satisfied because the conduct of the appellants' solicitors is not relevant to the application for relief from sanctions. Even if he is wrong on that, however, and a claimed failure on the part of the original solicitors would amount to a reason for granting relief, Mr Mayall submits that the admission of the evidence would not have had any, let alone an important, influence on the result before the Master.
30. Mr Mayall submitted that the documents that had been produced did not show what the appellants contend they show. He took me through a detailed analysis of the various documents. First, he considered the position of FBS. He said that the documents clearly contradicted aspects of what the first appellant had said in the passage from the first witness statement which I have previously cited. First, it was quite clear from the documents, and in particular the email (at bundle 3, page 1094) of 26^th June 2014, that, as at that date, the contents of the order of Deputy Master Jefferis had been discussed between the first appellant and his solicitor. That contradicted a statement by the first appellant that not only was he not informed of the hearing (as appears to have been the case), but that he had not even been advised of its outcome.
31. Secondly, it is said that the documents reveal that it was not as a result of what he had been told by mutual friends and family that the first appellant had come to know of the order of 18^th September. It was clear from the email of 9^th September (at page 1113), before the consent order was made, that, through a family function, the first appellant understood that the respondent's solicitors were asking the appellants for more information. It was clear from an email of 17^th September 2013 (at page 1132) that the first appellant knew on 17^th September that a hearing was to take place in court the following morning. He was inquiring whether he needed to attend. He was also inquiring as to whether the information the first appellant had sent the previous day, in regards to their accountant, was sufficient.
32. It was also clear, Mr Mayall submitted, from the emails, that the first appellant knew that accounting records were required by the respondent as early as 27^th September 2013. On that day the first appellant had sent an email to FBS stating that the appellants were still waiting for FBS's reply in regard to the accounting records as these needed to be delivered to FBS's offices for the respondent to look at. Mr Mayall submitted that it was clear that the first appellant knew that the accounting records needed to be disclosed as early as 27^th September 2013. On the same day, FBS sent an email to the first appellant stating that FBS would give the first appellant a call on Monday 30^th September; and that FBS thought it would be a good idea for the first appellant to come to their offices with the papers on the Tuesday so that FBS could fix an appointment, presumably for the respondent's representatives to inspect them, on Wednesday or Thursday, 2^nd or 3^rd October. Mr Mayall submitted that this contradicted what had been said by the first appellant at paragraph 2(d) of his first witness statement.
33. Moving on to the period after the appellants' disengagement of FBS, it was said the correspondence from the time that PKP French were retained made it plain that that new firm of solicitors had failed entirely to engage with the need to comply with Master Marsh's order of 8^th September.
34. Mr Mayall took me in detail through all of the correspondence. In the course of doing so, Mr Mayall took me to a letter from the respondent's solicitors, Thakrar & Co, to PKP French Solicitors of 29^th November 2013. Within that letter was a statement that an issue which Thakrar & Co wished to address was a statement contained in PKP French's email of 27^th November, that that firm claimed that they had previously advised Thakrar & Co that they had received two boxes of accounting records from the appellants' previous solicitors which the accountant could attend and inspect. Mr Mayall submitted that that clearly contradicted what was said by Mr Patel at paragraph 6 of his witness statement, that the first appellant had obtained the accounting records personally from FBS and had delivered them to Mr Patel's offices on 4^th December 2013.
35. During the course of his reply, Mr Ritchie had to accept that it would appear that PKP French had in fact received the accountants' papers on or about 27^th November. Mr Mayall pointed out that the value of the correspondence between PKP French and Thakrar & Co was devalued by the omission to include that email, amongst others referred to in the later correspondence. Mr Mayall submitted that the correspondence showed that PKP French were simply refusing to accept that the court order of 18^th September was in place; and they failed to deal with the request for accounts to be made available for inspection until 4^th December 2013, even though they had been instructed on 29^th October. For those reasons, Mr Mayall submitted that the admission of the correspondence would not help the appellants to counter the Master's view that there had been non-cooperation on the part of PKP French in providing access to the partnership accounts.
36. So far as the third criterion was concerned, Mr Mayall acknowledged that the documents sought to be relied upon were credible in themselves. What, however, he said was that it was disturbing that there were gaps, in particular in relation to missing emails. He made the point that despite the application to adduce fresh evidence having been intimated, and made, in the appellant's notice of 29^th May, it was not until Wednesday or Thursday of last week that the respondent's solicitors had first received the original witness statement of Mr Patel, dated 15^th July, and its substantial exhibits. Mr Mayall indicated that there was nothing in the correspondence exhibited between PKP French and FBS to suggest that FBS had not disclosed the accounting documents until 27^th November. Mr Mayall took me to that correspondence and pointed to the omission of any reference therein, or any complaint, about the non-delivery of the two boxes of accounting documents, which it was clear that PKP French had received by no later than 27^th November. Mr Mayall reminded me that, as the Master had said, although the documents were said to be clearly available for inspection, and were inspected on 20^th December, the documents disclosed were not a complete set of accounting records, as exemplified by the first appellant's production of further documents as exhibits to his second witness statement.
37. For all of these reasons, Mr Mayall submits that the court would have to treat this evidence with some caution in any event. In summary, Mr Mayall submitted that none of the three criteria in Ladd v Marshall were met. This was said to be a hopeless application to adduce fresh evidence, and that it should be dismissed.
38. In his reply, Mr Ritchie submitted that the new evidence was credible, and was supported by the difficulties that Thakrar & Co, the respondent's solicitors, had experienced in obtaining any responses to correspondence from FBS. Mr Ritchie accepted that, in retrospect, it would have been better to have put in the additional documents earlier; but he submitted that the evidence was relevant as part of the circumstances of the case.
39. He challenged Mr Mayall's submission that the conduct of the solicitors was irrelevant. In that regard, he took me to paragraph 31 of the recent judgment in Denton v TH White [2014] EWCA Civ 906 and other appeals. There it was said to be an important misunderstanding that if (1) there was a non-trivial (and, now, serious or significant) breach and (2) there was no good reason for the breach, the application for relief from sanctions would automatically fail. That was not so. Rule 3.9(1) of the CPR was said to require that, in every case, the court should consider all the circumstances of the case, so as to enable it to deal justly with the application. The failure of independent obligations on the part of a solicitor to litigation was one of the "circumstances of the case". The failure of a solicitor should not be visited on the client, and it was a relevant circumstance for the court to consider.
40. Mr Ritchie acknowledged that the way in which the first appellant had expressed himself in his first witness statement had not been an ideal way of putting matters over to the court; but, nevertheless, it did make it clear that the first appellant had taken steps to make the accounting records of the partnerships available; and the documents upon which the appellants now seek to rely supported that. It was said that they did not contradict what he had said, but rather they supported it.
41. Mr Ritchie took me to communications passing between the first appellant and FBS, which made it clear that he was trying to get his solicitors to do something about making the documents available for inspection. Mr Ritchie submitted that the first appellant was the one who was trying to get documents made available, and he had been doing his best in that regard. There was nothing to suggest that he was seeking in any way to frustrate the implementation of, or compliance with, Master Marsh's order of 18^th September. He accepted that the appellants had not got the documentation available on time; but the first appellant had been making strenuous efforts to get through to the solicitors, and to stress to them the importance of making the documents available.
42. Ultimately, when the documents were not delivered, the first appellant decided to change solicitors. In so doing, he was doing as much as he could. That supported his case, and showed that the account that he had given, about which the Master was so sceptical, was correct. It was the solicitors, rather than the first appellant himself, who were at fault. The documents did not support any suggestion that the first appellant had been instructing FBS to be obstructive.
43. Mr Ritchie also invited the court to remember that Thakrar & Co had been asking for a great many things in addition to disclosure of the accounts. He invited the court to bear in mind that PKP French had come on board on 29^th October, and had had to get up to speed. It was the first appellant himself who came to the rescue by securing the documents, that were produced to PKP French by 27^th September. He reminded me of the consistent failure on the part of FBS to respond to, or its failure to reply to, correspondence with both PKP French and Thakrar & Co. Mr Ritchie accepted that his clients had had the files, and they could have produced them earlier. Nevertheless, he invited the court to find that the necessary criteria in Ladd v Marshall were satisfied. Those were the submissions.
44. In my judgment, it would not be right to admit this fresh evidence. It is entirely clear that the documents upon which Mr Ritchie now seeks to rely on behalf of the appellants were indeed available to the appellants at that time of the hearing before Master Marsh, in March and April of this year. I am not satisfied that there was any excuse for not exhibiting them to the first appellant's first witness statement. That first witness statement ran to 17 pages. Even if there was some excuse for not exhibiting them to the first witness statement, there was certainly no excuse for not exhibiting them (if they were sought to be relied upon) to the second witness statement of 26^th March 2014, which itself ran to 14 pages. That witness statement, at the second numbered paragraph 10, and also paragraph 11, expressly addressed the application for relief from sanctions, and the circumstances in which it came to be made. It would not, in my judgment, be an appropriate exercise of the court's discretion, nor would it be consistent with the overriding objective, to give the appellants what would effectively be a second bite at the cherry. The appellants fail on their application at the first hurdle because the evidence could, with reasonable diligence, have been obtained for use at the hearing before the Master.
45. So far as the second criterion is concerned, I would not accept Mr Mayall's submission that the conduct of the solicitors is entirely irrelevant to the application for relief from sanctions. I acknowledge what is said at paragraph 41 of Mitchell. I accept that that remains good law after Denton, particularly since express reference is made to that paragraph by way of exemplification of bad reasons for a failure to comply with rules, practice directions or court orders (at paragraph 30 of Denton). Nevertheless, paragraph 41 of Mitchell is not dealing with the situation where the solicitors for the party in default are said to have deliberately, and wilfully, failed to follow their client's instructions. Such cases of deliberate, and wilful, failure will hopefully be rare; but in a case where such failures have been demonstrated, it seems to me that they can be taken into account, as part of the overall circumstances, at the third stage of consideration of an application for relief from sanctions. So I reject Mr Mayall's submission that, in principle, the further material is entirely irrelevant.
46. However, the second criterion in Ladd v Marshall is whether "the evidence is such that, if given, it would probably have had an important influence on the result of the case, although it need not be decisive." I am not satisfied, for the reasons given by Mr Mayall, that it has been demonstrated that the additional material satisfies this second criterion.
47. In the course of his judgment, at paragraph 43, Master Marsh said in terms that "even if the defendants' explanation was true, about which I have grave reservations, it comes nowhere to excusing his failure to ensure that either FBS, or the new solicitors, complied with the order". Paragraph 44 (iv) of the judgment must be read in the light of that earlier statement. Mr Ritchie points to the last sentence of paragraph 5 of the ruling on the application for permission to appeal made by Master Marsh on 29^th May 2014. There, the Master said that he had not been satisfied that in fact the defendants had made proper efforts to explain what had occurred in the relevant period. In particular, having obtained their former solicitors' file, they had failed to provide the court with material information which could have been derived from that file.
48. In my judgment, that does not derogate from what is said at the end of paragraph 43. I am prepared to accept that had the material passing between the first appellant and FBS been before the Master, he might have been less critical of the conduct of FBS in terms of its effect upon the appellants. But even if the failure to give disclosure by FBS is capable of explanation without adverse implications for the appellants themselves, it seems to me quite clear from the correspondence that, having retained new solicitors, those new solicitors themselves failed properly to engage with Thakrar & Co in seeking to comply timeously, albeit belatedly, with the terms of Master Marsh's order of 18^th September. It is quite clear that PKP French knew of the problem caused by the non-compliance with Master Marsh's Order by the end of October; yet nothing was done, in terms of seeking to comply, until, at the earliest, 4^th December. The new material does not affect that period at all.
49. Against that background, in my judgment it cannot possibly be said that admission of the new material would probably have had an important influence on the result of the case, even if it would not have been decisive. So, in my judgment, although it is unnecessary to go that far, because the first criterion is not satisfied, the second criterion is not satisfied either.
50. So far as the third criterion is concerned, I accept Mr Mayall's submission, which is that, effectively, the new material raises as many fresh questions as it seeks to dispose of issues. It casts doubt upon certain of the evidence of the first appellant in his first witness statement. It casts doubt upon the assertion, in paragraph 6 of Mr Patel's latest witness statement, that Mr Dhillon delivered the relevant papers to PKP French's offices on 4^th December, as Mr Ritchie himself had to acknowledge. Moreover, the additional evidence does not show the full picture. It omits a number of emails, including – and in my judgment crucially – the email of 27^th September, which is referred to in Thakrar & Co's letter of 29^th November (on page 1273). It would not be right to admit an incomplete sequence of documents. So, in my judgment, this is not a case in which the court should permit fresh evidence; and I therefore dismiss that application.