LAWYERS GIVING EVIDENCE 2: “HARD TO FATHOM” WHY THE SOLICITOR WAS TENDERED AS A WITNESS

 In the second post about the dangers of lawyers giving evidence we turn to the judgment  of Master Marsh in  Pineport Limited -v- Grangeglen Ltd [2016] EWHC 1318 (Ch).  This was a relief from forfeiture hearing in which the only witness called by the defendant was their solicitor.  Things didn’t turn out well for the defendant…

“It remains hard to fathom why he was tendered as a witness instead of someone with relevant knowledge”

KEY POINTS

  • The Defendant called their solicitor to give evidence. On most of the matters he had no first-hand knowledge at all.
  • The solicitor could not give any direct evidence about many of the issues in the case.
  • The claimant was granted relief from forfeiture.

THE CASE

The claimant company was seeking relief from forfeiture in relation to an underlease.

THE DEFENDANT’S EVIDENCE

The Master commented on the unusual decision by the defendant to call their own solicitor to give evidence.

  1. The Defendant called only Mr Thompson to give evidence. To my mind that was a surprising decision because Mr Thompson, as the Defendant’s solicitor, has only limited first-hand knowledge about a number of key matters. Entirely understandably, Mr Thompson was unable to provide helpful answers to many of the questions put to him in cross-examination because he had no relevant knowledge. His statement includes a number of paragraphs which are mere argument rather than evidence, including his opinion that the court should not exercise its equitable jurisdiction in favour of the Claimant. His evidence is based upon what he has been told by Mr Andrew Butler. In particular, Mr Thompson was not able to provide any real help about the schedule of expenditure the Defendant claims to have incurred as a result of the forfeiture amounting to £66,717.02, save for those items relating to his firm’s legal costs. I accept Mr Thompson’s evidence about his conversation with Tulsi Shah of Makwanas Solicitors on 8 August 2014 which is recorded in his attendance note. Mr Thompson has no recollection of being contacted by Shorab following the forfeiture.
  2. The correspondence and emails passing between Colliers and the Claimant were not illuminated by Mr Thompson’s evidence but they largely speak for themselves. It is not seriously in doubt that the Defendant, through its managing agent and solicitors made real efforts to recover, without taking enforcement action, the arrears which were due and the Claimant cannot maintain the suggestion that it was taken by surprise. There is, however, a most curious aspect of the Defendant’s case concerning the schedule of expenditure the Defendant now seeks if the court were to be inclined to grant relief. Mr Thompson says baldly in his statement that “the Defendant has suffered prejudice following the forfeiture of the Lease”. He then refers to the schedule of expenditure after which he says:
“… the Defendant has suffered prejudice as it has been unable to re-let the Forfeited Property for in excess of 18 months since forfeiture took place.”
However, when cross-examined, Mr Thompson was unable to explain further the assertion that prejudice had been suffered and he was unaware of anything the Defendant had been unable to do as a consequence of the sum due not having been paid….
  1. in the trial bundles but failed to take it up. As to remaining items:
i. Mr Thompson was not able to provide any help with the basis upon which the loss of rent is calculated. The schedule of loss refers to an email from Mr Butler but it has not been disclosed.
ii. He was able to provide a limited amount of help about the claim for legal expenses. He said much of the work which has been invoiced was carried out by him at a charging rate between £200 and £225 per hour. However, he said the Defendant was not relying on any of the invoices.
iii. He was unable to provide any help about the calculation of service charges after the forfeiture and has not seen the annual certificate which the underlease requires to correct payments on account.
iv. His understanding, without having first-hand knowledge, is that the concrete barriers installed in the parking area were there to maintain the security of the unit by stopping anyone parking close to the shutters of Unit 4.
  1. I have been provided with submissions by both parties together with the invoices and other documents the Defendant wishes to rely on but failed to disclose. The court is asked to admit them. The Claimant’s response is qualified. Some of the items are accepted as proper items to be included in the tally of sums payable as a condition of the grant of relief, without accepting that such sums are due as a debt. In those instances the presence or otherwise of the invoices makes no difference. As to the remaining items, the Claimant says the court should decline to admit the invoices.
  2. It is clearly unsatisfactory for documents to be produced in the course of a short trial without the other party having an opportunity to consider them and at a moment of the trial when the witness who relies on such documents has already been cross-examined and has said in clear terms that additional documents are not relied upon. I can see no good reason why these additional documents should be admitted. The Defendant had an ample opportunity to prepare its case. The basis upon which disclosure was ordered was that each party was required to disclose the documents relied upon. The Defendant has proceeded on the basis that it did not rely upon the invoices and this was confirmed by Mr Thompson. As the only witness called by the Defendant he was not in a position to speak to any of the invoices other than those rendered by his firm and in many instances the invoices do not speak for themselves. Furthermore, not only were they were produced at a very late stage of the trial but without there being any adequate excuse for their omission. Indeed, I have a strong sense that they were only produced in an attempt to bolster Mr Thompson’s evidence when it must have been clear before the trial that he would be unable to help the court about most of the expenses claimed. It remains hard to fathom why he was tendered as a witness instead of someone with relevant knowledge. For all those reasons I decline to exercise my discretion to admit the invoices which were provided to me after the trial.”