YOU ARE PAYING YOUR WITNESSES BY RESULTS: WE WANT TO STRIKE YOU OUT

The judgment of Mr Justice Fraser in EnergySolutions EU Limited -v- Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) is a highly technical analysis of procurement legislation in an action that had already had a somewhat tortuous procedural history.  However I want to look at one part of the judgment that dealt with the fact that the witnesses in the case had an ( initially undisclosed) financial interest in the outcome.

(Personal injury practitioners may wish to have a look at the outcome of this case, with perhaps a wry smile, compared to the law relating to fundamental dishonesty.  In a commercial case such as this issues of proportionality and overall justice prevail…)

KEY POINTS

•  The fact that witnesses had a financial interest in the outcome of the action, did not, in this case justify striking out the case.
• The court would not order a re-trial. The witnesses were recalled and cross-examined about their evidence. The defendant had the opportunity to put its case to them.
• There were also issues of proportionality and court management. It would be pointless to order a new trial when the outcome was, inevitably, to be the same.

THE CASE

After a lengthy trial relating the tender and procurement process of nuclear power stations it came to the claimant’s solicitors’ attention that some of the witnesses would be paid a bonus if the action succeeded. The claimants’ solicitors brought this to the attention of the court.  The defendant made an application to dismiss the claim, or in the alternative for a retrial.

THE JUDGMENT

“XI The NDA’s application to dismiss the claim

904. On 21 July 2016 the NDA issued an application seeking an order that the Claims be dismissed, and/or be struck out, and/or that the trial on liability be declared a mistrial and of no effect. The information relied upon to support the application was the evidence served by Energy Solutions following my order of 14 July 2016, namely that of Ms Roe {D/6/1}, Mr Stuttaford {D/18/1}, Mr Joyce {D/20/1}, and the further evidence of Mr Bowes, Mr Board, Ms Wilson, Mr Davies, and Mr Colwill, all relating to the litigation win bonus arrangements.

905. Skeleton arguments were served by both parties on the morning of 25 July 2016 and a hearing took place that day and the next, which included cross-examining all of the eight witnesses identified in the preceding paragraph. I have dealt in Part V of this judgment with the circumstances in which that order of 14 July 2016 came to be made by me, and I have dealt in Part VI of this judgment with my view of the five witnesses who had given evidence already at the trial in November 2015, including the circumstances in which they came to agree (or in Mr Davies’ case, be given) payment of a bonus dependent upon the outcome of the litigation. I will deal with the other three witnesses in the order in which they were called.

Ms Sally Roe

906. Ms Roe is the partner at Freshfields with conduct of the case and a highly experienced solicitor. Energy Solutions have waived privilege in certain communications with Freshfields on this issue. In an email of 26 September 2014 at 3.25pm, Freshfields recorded their view about payments to witnesses in the context of paying Mr Matthews, who was a consultant and not an employee. This advice was given by Ms Roe’s assistant Kate Gough, assisted by Emma Procter, to Ms Roe, and was then given to Mark England of Energy Solutions in a meeting the same afternoon. The advice reviewed the law of England and Wales concerning this subject, and Energy Solutions was told that a witness must not be paid contingent on the evidence he or she gives, or “for giving evidence”. However, compensation could be paid for the time spent “provided that the rate is reasonable and represents the witness’s loss of earnings for the time spent.” Emails back to Freshfields on the same day at 17.25 and 18.08 show that both Mark England and Simon Stuttaford were aware of the advice, and an agreement was reached with Mr Matthews at his standard hourly rate for his loss of earnings. This was the same rate he was paid for working on the bid. That agreement is unobjectionable and the NDA take no point in respect of it.

907. Freshfields were not instructed to advise Energy Solutions on the redundancy programme but knew it was occurring. They were obviously involved in the litigation throughout the process. They notified Burges Salmon on 1 December 2015 of the intended disposal of Energy Solutions by its US parent, and again notified Burges Salmon of completion of that transaction on 11 April 2016. The next relevant part of Ms Roe’s involvement came in April 2016 when a draft of the proposed consultancy agreement with IJRB Ltd was sent to Freshfields by way of background, as Freshfields were to prepare delegations for Mr Bowes and Mr Board for the next phase of the litigation. The commercial terms were not reviewed at that time by Ms Roe. On 4 July 2016, a copy of the final version of that ES v NDA Approved Judgment Page 311 agreement was sent to one of Ms Roe’s assistants, Tom Hutchison. That day, it was briefly reviewed by Ms Roe (Ms Gough being away) and she noticed, in passing, a reference to “bonus payments”, which led her to review clause 4.2 itself. This clause was the one that contained the operative provisions relevant to this issue, namely the contingent payments of £100,000 and the 0.5% of damages recovered. She was immediately very concerned, but did not realise that the £100,000 was already in place from the earlier Supplementary Agreement, and thought it was a purely prospective future arrangement. She did, however, immediately instruct Mr Hutchison to follow this up and investigate the point, which he did initially with Mr Bowes, and although Mr Board was on holiday, also with Mr Board a couple of days later. Counsel were then consulted on 11 and 12 July 2016 which led to the letter dated 12 July 2016 being sent out later that day both to Burges Salmon and the court. 908. The following points are relevant. In my judgment, Freshfields acted as promptly as could be expected, and with urgency, once Ms Roe noticed the reference to such arrangements in the document she had been sent. No criticism can be attached either to Ms Roe, or to any of her team, for not realising the existence of these arrangements earlier than they did. Also, Mr Bowes, when asked by Freshfields, and then Mr Board too, were entirely open and helpful in explaining not only about the document they were asked about (the Percentage Fee Agreement) but also the Supplementary Agreements too. They therefore brought the full picture to the attention of Freshfields and in my judgment there was no attempt at secrecy. I should also state that Ms Roe acted in accordance with the highest professional standards, and brought the matter promptly to the attention of the court so that the handing down could be postponed and the matter thoroughly investigated.

Simon Stuttaford

909. The same, with regret, cannot be said for Mr Stuttaford; indeed, rather to the contrary. He is a solicitor having qualified in 1995. He had been at Burges Salmon (who coincidentally acted in this litigation for the NDA) before he joined Energy Solutions in 2011. Also coincidentally, Burges Salmon acted for Energy Solutions in the redundancy programme, but Mr Stuttaford told me that the continuing role of Burges Salmon as HR advisers to Energy Solutions was specifically considered by him following receipt of the acknowledgement of service in the First Claim {A/3/1}, and it was decided that as long as something “sat wholly outside of the claim…. [such as] routine employment matters” it was appropriate to continue to use that firm.

910. However, Mr Stuttaford accepted that he was aware at the time in 2015 of the principle contained in the Solicitors’ Code of Conduct published by the Solicitors Regulation Authority that banned payment to witnesses generally (which is in Rule 5.8). He also accepted that he drafted the Supplementary Agreements. He actually signed Mr Board’s Supplementary Agreement {D/19/85}. He also accepted that he had signed the Disclosure Statement in the litigation on 30 April 2016 {G/11/15}, less than three weeks before this. Rather worryingly, he said that he did not consider drafts of the Supplemental Agreements would be disclosable – a point which is plainly and obviously wrong – but even on his own view of “documents”, and given the duty of continuing disclosure, I fail to see how in any circumstances, any solicitor could sensibly fail to disclose the executed Board Supplementary ES v NDA Approved Judgment Page 312 Agreement. Not only is this failure to disclose extremely concerning in itself, in my judgment the failure to disclose is a free-standing and separate issue to the formation of such contractual arrangements themselves. These are two separate issues, and Mr Stuttaford is central to each of them.

911. Had Mr Stuttaford, as the in-house Counsel of Energy Solutions, acted as he ought to have done, such agreements (even if thought up by non-lawyers as an appropriate solution to a problem) would not have been contemplated at all, let alone drafted by a qualified solicitor and, in the case of Mr Board’s agreement, signed by a solicitor on behalf of the company. In my judgment, Mr Stuttaford is to be criticised for these lapses in application of proper professional standards.

912. However, Mr Hapgood QC in his skeleton argument endeavoured to put the case for the NDA on this issue not only as high as he possibly could, but in my judgment far higher than on the facts of this case it could merit. He used the phrase “inherently corrupt”, stated that such arrangements “must be regarded objectively as corrupt ones” and also referred to them as “corrupt arrangements”. He described them as “secret arrangements which were known to be improper”. However, he did not put the case in these terms to the witnesses which, were the NDA intending to advance such arguments, should have been done. At the end of the cross examination of Mr Stuttaford, I did put to Mr Stuttaford the point about corruption, as a matter of basic fairness and because, of all the witnesses, in my judgment he could have been expected to know more about the propriety of such agreements than anyone else involved. I also did not know at that stage that the point was not going to be put to any of the other witnesses who were being recalled, and who had given evidence in November 2015. Mr Stuttaford’s answer was as follows {Day23Z-CON/29/13}:

“The Judge: ….would you please give me your answer to a point that’s being put to me by the NDA, which is that they are corrupt agreements?

A. The supplemental agreements, you are talking about the supplemental agreements? The Judge: Yes.

A. Well, I categorically reject that. It was not a thought that even came into my mind, that that was why these agreements were being put together. It was not explained to me in any way like that by Tim Joyce, in my discussions with Tim Joyce, and to a certain extent with Ian Bowes. So I categorically reject that. It was not even a thought that came into my mind.”

I fully accept that evidence.

Timothy Joyce

913. He is the Executive Vice President Finance of the Claimant. He is a chartered accountant, having qualified in 1984. He is a Main Board director. Energy Solutions was the incumbent for the Magnox sites at the time of the competition, ES v NDA Approved Judgment Page 313 and the Claimant therefore decided that what is known as a Chinese wall would be put in place between those personnel working on the RSS bid, and those running the Magnox sites at the time. He therefore became the responsible director running the Magnox programme from February 2013, and hence was not involved in the bid. He was not involved in the decision to issue proceedings against the NDA but supported it. He did not know how the amounts payable in the Supplemental Agreements would be dealt with in the litigation either as part of the quantum claim, or as costs, and I find that he could not be expected to know. He did not think about them in the context of disclosure and I find that he could not be expected to do that either; Mr Stuttaford, in my judgment, had that responsibility. He oversaw the redundancy programme and the restructuring. He saw the agreements to pay litigation win bonuses as part of dealing with the small group of people necessary to be dealt with as a distinct group. The Settlement Agreements were in a common form for all employees, and the Supplemental Agreements each depended upon the personal circumstances of the individuals in question. Shortly after the bid had been lost, some personnel including Mr Colwill had raised the question of bonuses if the litigation was successful. This was understandable in my judgment – they would have received such a bonus had the bid been successful, and the whole rationale of the procurement challenge was that the RSS bid should have been successful. However, although this was rejected by Energy Solutions at that time, once the redundancy programme was adopted it had to be reconsidered and was. Also, Mr Board and Mr Bowes were rightly concerned about the effect on their futures of the confidentiality undertakings. In my judgment Mr Joyce took a business decision at a high level, ignorant of the public policy considerations relevant in this jurisdiction to such agreements. He instructed Mr Stuttaford to draft the agreements and this was done.

914. There was one particular point relied upon by the NDA that was made both to him and Mr Stuttaford, and also in submissions, namely that full Board approval should have been obtained for these agreements, and that a decision must have been taken deliberately not to tell the full Board. I find that there is nothing in this point. There is no evidence to suggest that any of the figures in the Supplemental Agreements were large enough to merit this. I doubt that a company of the size of Energy Solutions would require main Board approval for agreements in value between £15,500 and £100,000.

Legal principles

915. English law is hostile to agreements to pay witnesses dependent upon the outcome of litigation, and it is easy to see why. The temptation to a witness to give untruthful evidence because of the prospect of monetary reward for doing so means that such agreements are contrary to public policy.

916. The concept of illegality, and the role of public policy, has very recently been the subject of a decision by the Supreme Court consisting of nine Justices of the Supreme Court, namely Patel v Mirza [2016] UKSC 42 which became available on 20 July 2016. Neither party before me cited this case, although my attention was drawn to it by Energy Solutions when I asked Mr Howell QC whether the Supplemental Agreements were void, or voidable. No submissions were made about it but I was simply told I should read it. This sets out the doctrine of illegality and enforceability in circumstances where a claimant brought an action in ES v NDA Approved Judgment Page 314 unjust enrichment, seeking the return of £620,000 advanced by Mr Patel to Mr Mirza for an illegal purpose, namely betting on the price of bank shares with insider knowledge. What is called insider trading is a criminal offence. There were different views amongst the different members of the Supreme Court concerning reasoning, but the claim in restitution succeeded as the Supreme Court unanimously dismissed Mr Mirza’s appeal. That case makes clear that a detailed consideration is needed when considering the doctrine of illegality and paragraphs [107], [121], [133], [137] [143], [163], [197-199], [210], [250] and [253] of the decision set out the approach, at least so far as restitution is concerned. Obviously that equitable remedy is designed with the purpose of putting the parties back into their pre-existing positions. The correct characterisation of the nature of the Supplemental Agreements in terms of illegality would have an impact upon enforceability of (for example) one of the witnesses in seeking payment of the litigation win bonus. That issue is academic here, and any views I could express are not made after full (or indeed any) argument on this point. Suffice it to say, for present purposes, that payments to a witness contingent upon the outcome of litigation such as these are contrary to public policy and also contrary to the SRA Rules. They should not have been entered into. However, the fact that they were does not of itself entitle the NDA to succeed on this application.

917. Mr Hapgood QC readily accepted that there was no authority specifically on the point upon which he sought to rely. However, his primary submission was that this conduct was so far at the extreme end of the scale that dismissal of the claim, and/or striking out of the claims, was necessary as the trial “had been corrupted”, the evidence was tainted, there was a significant risk that a fair trial was impossible, and was generally conduct by both witnesses and Claimant that was so reprehensible that the Claimant had lost its right to have its claims heard. Essentially, the right to access to the courts had been lost. In the alternative, he submitted that the trial before me was so compromised it was necessary to have the case reheard by another judge at a retrial. Exploring the final element of the consequences of that alternative case for a mistrial before me, and a retrial, it was expressly submitted that none of the five witnesses involved could give any admissible evidence at a retrial and should not be permitted to be called. In technical terms, leading counsel for the NDA (of whom there were two) agreed they had become incompetent as witnesses.

918. The short answer to the application is that the existence of such agreements goes to the weight I should give to the evidence of each witness. Neither the existence of the agreements, nor the failure to disclose (which has now been remedied) justify granting the NDA the order sought on the application.

919. The NDA are of course permitted to cross-examine each witness about these agreements. This did occur, and the witnesses were recalled for that purpose. Any relevant points could be put to each of them. In this context, it should be noted that in an email from my clerk to the parties dated 15 July 2016 at 09.42 (the day after I had made the Order of 14 July 2016, but before the application was issued) the parties were told the following: “insofar as any submissions are to be made concerning the impact of these developments upon the findings of the draft judgment, the most sensible course is for those submissions to be made by reference to the draft judgment itself (as corrected for typographical errors) already in the possession of both parties.” The NDA declined to do this. Rather than point to any specific finding, a blanket approach to the consequences of these agreements was adopted. I find that such a blanket approach would not only be wrong in principle, but would lead to a disproportionate result. It would mean that there would be no proper analysis of legal principle applied to the facts of this particular procurement competition such that Energy Solutions’ claims could be properly assessed by the court.

920. However, out of deference to the careful legal submissions made by the NDA, I will deal with the approach of the NDA on this issue, in case I am wrong that the existence of such agreements goes to the weight to be given to the evidence of each witness.

921. The three cases from the United States are of no assistance. In The State of New York v Solvent Chemical Co Inc 166 FRD 284 (1999) District Judge Curtin held in an environmental lawsuit that actions, which he found were the equivalent of making cash payments to a witness Mr Beu as a means of making him sympathetic and securing his testimony, were indefensible and included in a general definition of “subornation of perjury”. However, in that case in a deposition Mr Beu had been asked whether he had “any business relationships with” the party after 1992. He stated that he had not, and none of the attorneys who knew about the relationship to “purchase his cooperation” made any attempt to clarify this answer. He actually had such relationships. He therefore gave, on any analysis, perjured testimony.

922. In United States of America v Cynergy Corp a case unreported in the 2 nd Federal Supplement of 2008 but with Westlaw Reference 2008 WL 7679914, a retrial was ordered when the jury in the first trial returned a verdict after Cynergy misled that jury by contrasting the plaintiff’s paid expert witness testimony with its own, which was said to be from unpaid current and former employees including Mr Batdorf. Mr Batdorf was in fact being paid by Cynergy under an undisclosed signed consulting agreement. Again, the facts of that case are somewhat far from this one, and also involve consideration of a verdict returned by a jury after it had been directly misled.

923. The final case relied upon is Thomas v City of New York 293 FRD 498 (2013) in which Mr Thomas brought an action for false arrest and excessive force against the police. He also entered into an undisclosed agreement with a witness that he would pay her 20% of any damages recovered. This agreement was not mentioned by the witness when she was asked about any financial interest in the case. The District Judge vacated the jury’s verdict in Mr Thomas’ favour and ordered a retrial. 9

24. These cases are a world away, in my judgment, from the facts of the instant one. They involve juries who have returned verdicts based on fraud or perjury. They are not in this jurisdiction. Reliance on them by the NDA is misplaced. Given they concern the Federal law of the United States (as they were Federal cases) Mr Howell QC was reluctant to make submissions about them.

925. Guidance to this court is found in the following cases from this jurisdiction. In Alpha Rocks Solicitors v Alade [2015] EWCA Civ 685 the Court of Appeal held that where an application is made to strike out a claim under CPR Part 3.4(2), the power to strike out should only be used in exceptional circumstances where it was just and proportionate to do so, and only where a claimant was guilty of misconduct so serious that it would be an affront to the court to permit him to continue. This was the case even if a claim had been fraudulently exaggerated. The emphasis should be on a fair trial. In that case the conduct was a claim for solicitors’ fees brought on the basis of fabricated documents and a knowingly inaccurate bill of costs. It was held “the remedy should be proportionate to the abuse” and the appeal against the striking out of the claim was allowed. Even there, where the conduct went to the very heart of the substantive claim, it was not struck out.

926. In Arrow Nominees Inc v Blackledge [2001] BCC 591 the Court of Appeal considered a case where the controller of a petitioner had forged documents, this had been discovered, he had then apologised and sought to explain his conduct, and then subsequently further falsification was discovered. This information that came to light put the case into the category of involving a “campaign of forgery” (at 634F) which meant his previous explanation of “impulsive moment of madness” was not the truth, and that there was a sophisticated process of forgery. There was also a serious risk other original documents had been destroyed. Notwithstanding this, the judge at first instance refused to strike out the petition. The respondents’ appeal against this succeeded, and Chadwick LJ held (paragraphs [53] to [55] at 640) the following:

“53. […] In my view the judge ought to have reached the conclusion that, once the allegations in respect of which there was a substantial risk that Nigel Tobias’ fraudulent conduct had made a fair trial impossible were put on one side and left out of account, there was no case for relief which remained to be tried.

54. It would be open to this court to allow the appeal against the judge’s refusal to strike out the petition on that ground alone. But, for my part, I would allow that appeal on a second, and additional, ground. I adopt, as a general principle, the observations of Millett J in Logicrose Ltd v Southend United Football Club Ltd (The Times,S March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules – even if such disobedience amounts to contempt for or defiance of the court – if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant’s conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled – indeed, I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court’s function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.

55. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court.”

927. In Dadourian Group International Inc v Simms and Dadourian [2009] EWCA Civ 169 the Court of Appeal considered an application to strike out an appeal under CPR Part 52.9. Arden LJ giving the judgment of the whole court explained further the dicta of Chadwick LJ in Arrow Nominees and in [233] stated that “any restrictions on access to the court must, among other things, be proportionate”. It was held that the dicta in Arrow Nominees was consistent with that. She stated:

“We consider that this paragraph is not to be read as meaning that a litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial is to be taken to have forfeited his right to take part in a trial in every case. Chadwick LJ is careful to emphasise that the litigant’s conduct had put the fairness of the trial in jeopardy and that the court’s power to strike out the proceedings was not a penalty for disobedience with the rules. This interpretation of [54] of the judgment of Chadwick LJ is consistent also with art 6 of the European Convention on Human Rights.”

928. In my judgment, these cases show that conduct at the very extreme end of the scale – for example forging documents, mounting a campaign of dishonesty — are necessary before access to the courts will be denied by striking out a claim such that it is never adjudicated upon. The Supplemental Agreements, and the Percentage Recovery Agreements, do not in my judgment involve any hint of dishonest or fraudulent conduct. They are nowhere near the top of the scale of reprehensible or fraudulent conduct, and in my judgment are not on the scale of dishonesty at all.

929. The NDA also rely upon the decision in Factortame Ltd (No.8) v Secretary of State for Transport (No.8) [2003] QB 381 wherein the Court of Appeal considered the situation of recovery by a professional firm of accountants of its fees on a percentage of recovery basis. That case is wholly distinguishable. Firstly, that case concerned an agreement in support of litigation, and express legal provisions such as the Courts and Legal Services Act 1990 provide powerful indication of the limits of public policy in that respect. Secondly, experts are expected, indeed required, to be independent, as set out in the CPR itself in CPR 35.3 due to the over-riding duty to the court, and the well-known authority The Ikarian Reefer [1993] 2 LLR 68, 8. Thirdly, permission is required from the Court to call expert evidence in the first place. No such permission is required for witnesses of fact. Fourthly, the case is no authority at all for justifying what the court is being asked to do by the NDA on this application. Finally, the passage to which my attention was expressly drawn by Mr Hapgood QC is not part of the ratio in any event and is per curiam on the test of apparent bias on the part of an expert.

930. Comfort that my approach – namely the presence of these agreements goes to weight – is correct can be drawn from Gloster J (as she then was) in Berezovsky v Abramovich [2012] EWHC 2463 (Comm). In that case, it transpired that even though Mr Berezovsky told the court none of his witnesses were being paid to give evidence, in fact they were. None of the agreements were disclosed. These were treated by the Judge as going to weight [103] to [111]. Mr Howell submitted that given the “array of legal talent” in that trial, the point might have been expected to be raised either by Mr Sumption QC (as he then was) for Mr Abramovich or even by Gloster J (as she then was) herself, if the NDA’s position on this application were correct.

931. Mr Hapgood QC marshalled a list of 13 factors that he said took this case into such an exceptional category that dismissing it entirely, or striking it out whether as an abuse or process or otherwise, was justified – indeed the only course available. It is unnecessary to set out all of those factors but I reject the submission that all, or any, of them make this such a case. Further, although the failure to disclose the agreements was a separate failure, I do not consider that this would justify such a draconian course of action. These faults on the part of the Claimant can be dealt with suitably by costs orders in due course.

932. I reject Mr Hapgood QC’s submission that the Supplementary Agreements are “inherently corrupt”. Firstly, the point was not put. Secondly, it is not a correct characterisation of the nature of these agreements when consideration is made of the relevant facts. The central point in the litigation is that had the NDA acted lawfully, RSS would have won the procurement competition. Each of these witnesses would have been entitled to a bonus at the time as a result of RSS winning the competition, had that occurred. Accordingly, on one view of their employment rights, one consequential effect of success in the trial would have been possible lawful entitlement to a bonus. The fact that the Supplemental Agreements had different amounts to those bonuses does not, in my judgment, matter. They had already worked on the bid submission itself, gaining bonuses for submitting that bid, even though that work was within their employment responsibilities and could arguably be said to be covered by their salaries. Assisting with the case, preparing their statements, and giving evidence, was work additional to their normal employment responsibilities, and given the subject matter of this case, must have involved work out of normal working hours and at weekends. Mr Bowes and Mr Board had given undertakings which directly impacted their freedom of employment in a highly specialist field until the case was over, or June 2017. This is a lengthy period. Mr Hapgood QC made much of  the fact that this sort of work could, indeed should, have been covered by their existing salaries but these witnesses worked in an environment where success was often rewarded with payment of a bonus. It was part of the company culture.

933. The speech of Lord Clarke in Summer v Fairclough Homes Ltd [2012] UKSC 26, is of considerable assistance. This case concerned surveillance evidence clearly demonstrating that an employee in a personal injury action against his employer had grossly and fraudulently exaggerated the effect of his injuries, claiming significant disability and inability to work. He could in fact not only work normally, but even play football. The Supreme Court dismissed the appeal by the employer who sought to strike out the award of damages for the injuries he had actually suffered. The employer argued this was justified as the fraudulent case he had advanced was an abuse of process. Lord Clarke in [41] to [44] makes it clear that there is jurisdiction to do this, both within the court’s inherent jurisdiction and the CPR, but this power would only be exercised where “it must be a very rare case” and he agreed with the Court of Appeal who had said this was “a largely theoretical possibility”. In my judgment, the existence of the Supplemental Agreements does not come close to making this such a very rare case.

934. It would be wholly disproportionate for this application to succeed, even on its alternative approach of a retrial. The points on the Supplemental Agreements have all been put to the witnesses. I have taken account of these points when assessing the weight which I should attach to the evidence of the five witnesses in question. This was a lengthy trial and even without the supplementary submissions necessary in March 2016, the trial started in November 2015 and ended in January 2016. There are only finite resources available to the courts. Undergoing the whole trial process again – for what is, if I am correct about admissibility, the purpose of questioning witnesses on the Supplementary Agreement before another judge – would not only increase cost to the parties, it would also deprive or delay other litigants. In my judgment, it would be contrary to the overriding objective in the CPR. The same evidence would be led at the subsequent trial, as I do not consider that there is a new category of inadmissibility of evidence created by the execution of such agreements. The NDA accepts there is no authority to support their express submission that each of the five witnesses has become incompetent. That submission is, in my judgment, entirely wrong in law.

935. Mr Giffin QC submitted that because these facts came to light after the draft judgment had been distributed, it is too late to deal with the issue within this trial. That submission too is, with respect, wrong in law also. The Supreme Court in Re L (Children) [2013] UKSC 8 confirmed that there is power for a judge to change his or her mind up until the order is drawn up and perfected and that there is no principle that this power can only be exercised in exceptional circumstances. The Court of Appeal in Edenred (UK Group) Ltd v Her Majesty’s Treasury [2015] EWCA Civ 326 in the judgment of Etherton LJ the Chancellor (as he then was) stated in paragraph [49] that there was:

“…greater latitude to a judge to alter the judgment while it remains in draft as distinct from after it has been formally handed down although inevitably each case will turn on its own particular facts”.

Even if the same submission is made by way of accepting I have the power, but seeking to dissuade me from reconsidering my draft judgment, I reject it. Reconsidering the draft judgment after recalling the witnesses to be asked about these agreements is the obvious and in my judgment correct course of action to adopt. I also reject the overarching submissions made by the NDA that the fairness of the trial process has been hopelessly compromised, or that there was a significant risk that it has been. 936. Given there is no fraud, the approach set out by the Court of Appeal in Royal Bank of Scotland v Highland Financial Partners LP [2013] EWCA Civ 328 does not arise. However, even if it did, [106] of the judgment of Aikens LJ makes clear the fraud must be material. For the reasons I will now explain, materiality does not assist the NDA either due to the subject matter of the issues.

Materiality

937. This case involved the evaluation by the NDA of both the RSS and the CFP tenders against the rules of the competition contained in the SORR. It could, potentially, be advanced without any evidence at all from witnesses for Energy Solutions. Indeed, one part of the case upon which Energy Solutions succeeded was particularly suited to such an approach, namely the CFP Threshold Issues which are the subject matter of Part X Sections C1 to C6. There is nothing to suggest that even if the NDA was correct, and even if each of the five witnesses who entered into the Supplemental Agreements did become incompetent to give any evidence, or that their evidence were totally untruthful, that this would have any effect. The answers to the failures by the NDA to disqualify CFP on the two Threshold Requirements that I have found CFP should have failed, namely Nodes 306 and 401, would not change.

938. There are other areas on the RSS Tender evaluation which fall into the same category. That concerning critical assets, has an effect upon Part X Section B1 of this judgment and Nodes 411, 412, 414, 408, 405 and 410. The summary of my findings on these Nodes was that Mr Grey failed to apply industry standards, and the tests set out in his own published material, to the categorisation of critical assets. He manifestly applied the wrong test. Again, there is no need for extensive, or even any, evidence from the five witnesses the subject of these Supp lemental Agreements for that case to succeed a second time. In terms of equal treatment (or lack of it), in Node 411 the NDA had marked RSS down for failing to identify either the AETP or the saline groundwater pumping system as critical assets. However, CFP did not identity these very same systems as critical assets either, yet the CFP bid was not marked down. Findings such as these would remain wholly unchanged regardless of the evidence by EnergySolutions.

939. In the time available, which both parties agreed was sufficient, I have revisited my findings in the draft judgment on each and every Requirement in issue for both the RSS and CFP bids to consider whether those findings would have been different, even were I to have concluded (which I have not) that any of the five witnesses should have had their evidence discounted to a significant degree, or even entirely. I have concluded that those findings would be, in those hypothetical circumstances, exactly the same. I consider that this was more than the NDA was entitled to expect, given their failure to accept the invitation expressly made by the court on 15 July 2016 to make submissions based on specific findings in the draft judgment. There is no reason why that could not have been done by the NDA in the alternative to the blanket approach adopted on the application. That blanket approach sought what could be described as a technical knockout of the whole claim (or to be accurate, all three claims). It could be described as opportunistic. However, even having gone through that exercise, in my judgment any subsequent trial would reach the same conclusions as I have done.

940. It follows from this that the correct course is to dismiss the NDA’s application and hand down the judgment on liability