DOCUMENTS, AUTHENTICITY AND ADMISSIONS: A TIMELY REMINDER OF THE PROVISIONS OF CPR 32.19
I said in the previous post that there are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven  EWHC 1647 (Ch). One of those reasons is that it contains a timely reminder of the importance of the provisions of CPR 32.19.
The action concerned the terms on which a strip of land, some 4 metres wide, should be transferred to the claimants, in particular whether the land would be subject to certain restrictive covenants. The claimants sought a declaration as to the terms of the transfer and damages. The claimants’ credibility was very much in issue.
THE CLAIMANTS’ EVIDENCE AND CPR 32.19
The judge was considering the evidence of the second claimant in the action and, in particular, his reluctance to accept points made from documents that were against him.
“When I put the pigs onto the 4 metres we were trespassing in a vain attempt to get things moving, it was not by way of an abuse of a licence as none had been granted nor was it ever sought, we were not brought up to be borrowers.”
In the later email the second claimant said:
“Putting the pigs on the 4 metre strip was an act of trespass in the vain hope of grabbing your attention that nothing was being done and we wanted the land returned to our ownership as you were not complying with the contract.”
However, in 2012 there were proceedings brought in the Chelmsford County Court by the defendants against the claimants in respect of activities being carried on by the claimants on their land but also on the strip. In particular, the defendants objected to the fact that there were pigs on the 4 metre strip. During the hearing before the district judge in July 2012, the district judge asked the second claimant about trespass by him on the strip. The second claimant said this:
“I have been on there once to retain a chicken. The 4 metre strip of land was due to be returned to us within 28 days of the party wall building being demolished. That was three years ago that should have been returned to us. We never pushed it, we never went for it and we stood back and we waited. The party wall had to have work carried out on it. That work was carried out and we found that a chicken had strayed onto there. I went on there. That is the only time, without consent, I went on there to get this bird back.”
This inconsistency was put to the second claimant in cross examination in the present case. The second claimant told me that these emails were not ones that he would have written. He denied lying to the County Court, and maintained that he never wrote these emails. He said it was very easy to alter an email. These documents, however, were disclosed in the course of these proceedings. And CPR rule 32.19 provides that a party shall be deemed to admit the authenticity of such documents unless he serves notice that he wishes the document to be proved at trial. As I understand the matter, no such notice was served, and therefore the authenticity of the emails is deemed to have been admitted. It is not open to the second claimant at this stage to deny that.