WHEN YOUR PLEADED CASE IS DIFFERENT TO YOUR EVIDENCE: YOU ARE TAKING A HUGE GAMBLE (WHICH DIDN’T PAY OFF…)

The judgment of Gavin Mansfield QC (sitting as a High Court judge)  in Puharic v Silverbond Enterprises Ltd [2021] EWHC 351 (QB) highlights the difficulties that can occur if the pleaded case differs from the evidence. Put bluntly running a case on this basis stacks the odds against you.

 

“the conflict between the pleaded case and the evidence casts significant doubt on the Claimant’s case as a whole.”

THE CASE

The claimant had £1,240,940 whilst gambling at the defendant’s casino.  His case was that he was entitled to further sums because the defendant offered an incentive to induce him to play at the club.

THE DIFFERENCE BETWEEN THE PLEADED CASE AND THE EVIDENCE

The judge observed that there was a difference between the Particulars of Claim and the claimant’s evidence.

There are differences between the Claimant’s pleaded case and his evidence as to the terms of this agreement. I allowed the trial to proceed on the basis of the evidential case the Claimant wished to present. I deal with the inconsistencies between the pleadings and the evidence in more detail below.”

THE JUDGMENT ON THE CLAIMANT’S PLEADED CASE

The judge considered the significance of the difference in the pleaded case.  It had a major impact on the claimant’s credibility – in a case that depended largely on accuracy of recollection of oral conversations.

The Pleaded Case as to the Offer and the evidence
    1. I have so far set out the Claimant’s case as it was set out in his witness statement and in the oral evidence he gave. His pleaded case is different.
    1. First, there are differences as to when the offer is said to have been made. The Claimant’s pleaded case is that “the Offer” was made in a number of conversations between January 2015 and May 2015. The Particulars of Claim do not make any specific allegations as to what was said on any given occasion. As I have set out above, the Claimant now relies on specific conversations with Mr Walker on 30 April and 26 May. While each of those conversations fall within the broad pleading in the Particulars of Claim, it is noteworthy that there was no mention of the specific conversations until the Claimant served his witness statement for trial on 18 September 2020, more than five years after the relevant events.
    1. Second, and more significantly, there is a difference in the alleged terms offered. According to paragraph 10 of the Particulars of Claim, the offer was that if the Claimant gambled on roulette at the Club he would do so on the same or better terms than those he had the benefit of at other Mayfair casinos. Paragraph 13 of the Particulars of Claim explains in some detail the effect of the Offer. If the Club’s standard terms were more favourable to the Claimant than the best terms he enjoyed elsewhere in Mayfair, then the Club’s terms would apply. If the Club’s standard terms were less favourable than the best terms he enjoyed elsewhere in Mayfair, then those better terms would apply.
    1. Paragraph 15 pleads that the Club (through Messrs Walker, Gallacher and Hassiakos) knew that the terms the Claimant enjoyed at Crockfords and Les Ambassadeurs included an entitlement to 0.9% of all money gambled on roulette, regardless of whether the gambling resulted in a win or a loss.
    1. This pleaded case is quite different to the evidence given that there was an offer to match, but not beat, the specific 0.9% turnover bonus the Claimant said he was receiving elsewhere.
    1. In cross-examination the Claimant initially said that Mr Walker told him (on 30 April) both that the Club would match the terms that the Claimant received at other casinos from time to time and that the Club could not give him more than 0.9% but could match that figure. Those two propositions are inconsistent. When questioned further, the Claimant accepted that if his percentage bonus at another casino improved his percentage at the Club would not automatically improve – he would try to get a higher rate from the Club and there would need to be another conversation. When it was put to him that this was inconsistent with his Particulars of Claim the Claimant did not seem able, or willing, to grasp the contradiction. He maintained that he was told both that he was offered specifically 0.9% turnover and that he was told that the Club would match whatever terms other casinos were giving him.
  1. This inconsistency was raised by Mr Olliff-Cooper on behalf of the Club in his Skeleton Argument. He argued that if the Claimant wished to run the case set out in his evidence, he would need to apply to amend his pleading. No such application was made. On Day 3 of the trial, after the completion of the Claimant’s case, his counsel did make an application to amend the Particulars of Claim. However, the amendment was to correct a mistake as to the amount of winnings. The Claimant did not seek to make any amendments to regularise the inconsistency between his evidence and his pleaded case as to the terms of the oral contract. Rather, the Claimant maintained a position that there was no inconsistency.
  1. Without prejudice to his pleading point, Mr Olliff-Cooper dealt with the Claimant’s evidential case on its merits and both the pleaded and evidential cases were explored fully at trial. In those circumstances, I shall deal with the substance of the case on its merits, rather than as a formal matter of pleading. In my judgment, the Claimant’s pleaded version of the “Offer”, one in which the Club’s incentives would change if the incentive received by the Claimant at other casinos changed, is unsustainable on his own evidence. Further, the conflict between the pleaded case and the evidence casts significant doubt on the Claimant’s case as a whole.

THE ASSESSEMENT OF THE EVIDENCE

When the judge came to assess the claimant’s case the first matter that featured was the difference between the claimant’s evidence and the pleaded case.  The claimant was unsuccessful in his action.

 

    1. However, the problems with the Claimant’s case are too many and too strong. I have particular regard to the following factors:
a) The Claimant’s evidence is significantly at odds with his own pleaded case.