PROVING THINGS 132: BUNDLES, BURDENS OF PROOF AND GO-KARTS: CLAIMANT MANAGES TO CROSS THE WINNING LINE ON APPEAL

The judgment in Cowley Property Investment Ltd v Oxford Karting Ltd [2018] EWHC 2824 (Ch) contains a consideration of the rule that documents in an agreed trial bundle are admissible. It is a case all about proving things without calling evidence. It is also about go-karting.

THE RULES CONSIDERED

Practice Direction 32:

“27.2  All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –
(1) the court orders otherwise; or
(2) a party gives written notice of objection to the admissibility of particular documents.”

THE CASE

The claimant (Cowley) sought a declaration from the defendant (Oxford) as to the terms of which the defendant occupied the claimant’s premises which were being used as a go-kart track.  The claim was dismissed by the circuit judge and the claimant appealed.

THE JUDGMENT BELOW

The case had an unusual procedural history.  Cowley stated it would be calling no evidence.  The circuit judge dismissed the application by ordering “otherwise” and stating that Cowley could not rely on documents.

 

    1. In her judgment the judge held in summary as follows:
i) Cowley had not positively averred that Oxford’s occupation of the Old Tote Building and Karting Track was on the terms of the 2007 Lease, but only that Oxford occupied the property on the same terms as Karting. Given the way in which it had pleaded its case, it was incumbent on Cowley to seek the revised declaration at the very latest when it opened its case. The revised declaration did not accord with Cowley’s pleaded case.
ii) There was no dispute as to the authenticity of the documents relied on by Cowley, but there had been no agreement that the documents could be treated as evidence of the facts stated in them pursuant to Practice Direction 39A paragraph 3.9. Although Practice Direction 32 paragraph 27.2 provided that documents contained in bundles agreed for use at a hearing were admissible as evidence of their contents, that was subject to an order to the contrary. In exercising its discretion as to whether to make an order to the contrary, the court should be guided by the overriding objective. In this case, given the way the case was pleaded, the late abandonment of a substantial part of the claim and the late notification that Cowley was not calling any witness evidence, Oxford was entitled to know that Cowley was seeking to rely upon the documents in the bundle before Oxford made its election as to whether to call evidence. Cowley had not identified the documents it relied upon until counsel’s written closing submissions, after Oxford had made its election. Accordingly, as a matter of fairness, Cowley should not be permitted to rely upon those documents at that late stage.
iii) It followed that Cowley had no evidence to prove its case, and accordingly the claim should be dismissed.”

THE JUDGMENT ON APPEAL

 Mr Justice Arnold allowed the claimant’s appeal.
    1. It is unnecessary for me to consider much of the judge’s reasoning, because, as stated above, counsel agreed at the hearing of the appeal that that the appeal turned on a very narrow point.
    2. In paragraph 9 of her skeleton argument for the appeal counsel for Oxford stated:
“The parties were agreed that the D occupied the Premises on the same terms that Karting UK (‘KUK’) had occupied it in August 2011. The parties did not agree what those terms were or, indeed, who bore the burden of proof in respect of them.”
    1. In opening the appeal counsel for Cowley referred to this paragraph and stated that Cowley’s case was that the terms on which Oxford occupied the Old Tote Building and Karting Track were those set out in the 2007 Lease. He submitted that the burden lay on Oxford to establish any different terms, and that Oxford could not discharge that burden since it had called no evidence.
    2. Counsel for Oxford submitted that the burden lay on Cowley to establish the terms on which it relied, that it was not open to Cowley to shift the burden of proof onto Oxford and that Cowley could not discharge the burden on it since it had called no evidence.
    3. In those circumstances counsel agreed that the appeal turned on which party bore the burden of proof and whether that burden could be discharged without witness evidence, rather than upon the status of the documents included in the trial bundle.
Analysis
    1. Cowley’s case, as set out in paragraphs 1.3.1 and 1.3.2 of its Further Information, was that Oxford’s occupation of the Old Tote Building and the Karting Track was on the terms of the 2007 Lease. It follows that the burden lay on Cowley to prove that case. Oxford’s case, as set out in its Further Information, was that the terms of the 2007 Lease were varied. It follows that the burden lay on Oxford to prove that case.
    2. Accordingly, the decisive question is whether either party was able to discharge the burden upon it without any witness evidence. Since the hearing was a trial, the fact that the parties’ statements of case were verified by statements of truth did not mean that the parties could rely upon those statements as evidence: see CPR rule 32.6(2). But what each party could rely upon was admissions made by the other, since facts which are admitted do not have to be proved. (Indeed, in an appropriate case, a party may obtain judgment on admissions: see CPR rule 14.3.)
    3. In my judgment Cowley was able to discharge the burden upon it without any witness evidence for the following reasons:
i) Although Oxford had formally put Cowley to proof that it was the registered proprietor of the Stadium in its Defence, at the trial Oxford admitted that Cowley was the owner of the property. (This admission was evidently the basis for the judge’s finding to the same effect at [6].)
ii) It was common ground on the statements of case that the Old Tote Building and the Karting Track had originally been let by GRA to Karting on the terms of the 2007 Lease.
iii) It was common ground on the statements of case that there had been no assignment of the 2007 Lease to Oxford.
iv) It was common ground on the statements of case that Oxford’s occupation of the Old Tote Building and the Karting Track in August 2011 resulted in an implied surrender of the 2007 Lease by Karting.
v) Oxford admitted that GRA had been notified that Oxford was in occupation of the Old Tote Building and the Karting Track by the letter dated 9 August 2011. As set out above, the letter dated 9 August 2011 stated that Oxford would “continue doing business with you on the same terms and conditions as before” i.e. as Karting had done.
vi) Oxford admitted that, since going into occupation, it had paid the monthly rent of £1,250.
vii) It was common ground on the statements of case that, after 13 August 2012, Oxford occupied the Old Tote Building and the Karting Track on a monthly periodic tenancy.
viii) In those circumstances, it is to be inferred, in the absence of evidence to the contrary, that Oxford’s occupation of the Old Tote Building and the Karting Track from August 2011 to 13 August 2012 took effect as an implied re-grant by GRA to Oxford on the same terms as the 2007 Lease. It follows that Oxford’s occupation since 14 August 2012 has been on a monthly periodic tenancy on the same terms as the 2007 Lease so far as they are consistent with a monthly periodic tenancy.
  1. In my judgment Oxford was not able to discharge the burden upon it without any witness evidence, because witness evidence was required in order to show that the terms of the 2007 Lease had been varied either before or after August 2011.
  2. There was some debate between counsel as to whether a declaration would serve a useful purpose. In my judgment it would serve a useful purpose, because it would settle the dispute between the parties as to the terms on which Oxford has occupied, and continues to occupy, the Old Tote Building and the Karting Track.
  3. Although I have arrived at a different conclusion to the judge, this is largely attributable to the different way in which in the case was argued before me. Furthermore, it does not appear that the judge was referred to either paragraph 1.3.1 of Cowley’s Further Information or paragraph 7 of Oxford’s Further Information.