IF YOU HAVE GOT ISSUES WITH DISCLOSURE YOU SHOULD HAVE SORTED THESE OUT WELL BEFORE TRIAL: HIGH COURT JUDGMENT

The judgment of Mr Justice Martin Spencer in Chouza v Martins & Ors [2021] EWHC 1669 (QB) contains much of interest and importance to anyone involved in fatal accident litigation. Indeed I will be writing a series of posts on the issues arising from this case.  Here, however, I want to look at the judge’s comments in relation to the defendant’s complaints about lack of disclosure from the claimants.  The judge was not sympathetic to the defendant’s points as to lack of disclosure when it had been open to make the necessary application prior to trial.

“…more fundamentally, in my judgment this should all have been sorted out and dealt with by the parties well before trial and if the defendants were dissatisfied with the disclosure that had been made, they could and should have applied to the Master for appropriate orders to be made”

THE CASE

The claimants were bringing actions following the death of Mr Rodriguez in a road traffic accident.  The defendants complained that there had been a lack of disclosure, indeed a “campaign of deliberate concealment”.

THE JUDGMENT ON THIS ISSUE

The judge was not sympathetic to the defendants’ submissions on this issue.

1. 1. Mrs Cacheda, Alberto, David and Lucas all gave evidence to the court by video link and with the assistance of an interpreter. Despite these limitations, I was able to assess them as witnesses and I can indicate that they all came across as wholly honest, straightforward and reliable witnesses who were doing their best to assist the court. There is, however, an issue that arises in this case over the alleged failure on the part of the claimant to obtain, produce and disclose relevant documentary evidence, and this lacuna in the evidence has formed an important part of the submissions by Mr James on behalf of the defendants. He subjected David, in particular, to searching cross-examination about the efforts David had made to secure relevant documentation and the answers to those questions led Mr James to suggest to David that he had engaged in a “campaign of deliberate concealment” of relevant documents from the court and from the defendants. Mr James also asked the court to draw adverse inferences from the claimant’s failure to make proper disclosure.

1. 1. The documents in respect of which it is said that there has been inadequate disclosure come in the following categories: the deceased’s bank statements; the deceased’s tax returns; the deceased’s Spanish Social Security records; the deceased’s medical records. These were all addressed by David Otero in his evidence. He said that he and his mother were told by the bank manager that the deceased’s bank account had been closed and the bank was unable to help. He and his mother also had a face-to-face appointment with the relevant Spanish public body responsible for tax returns and they were told it would not be possible to provide his father’s confidential information. In relation to the Social Security records, they were told that these could not be provided as the deceased had been de-registered due to his death and there was no way to get hold of the records. Finally, they spoke with the family doctor and were only provided with the brief Health Report dated 17 October 2017 from Dr Cesar Garcia (page 374 of the bundle).

1. 1. It may well be that further, additional efforts could have been made to secure relevant further documentation. For example, the claimant’s solicitors could have engaged a lawyer in Spain to assist in obtaining disclosure from the authorities, rather than leave David and his mother to their own devices. Mr James submitted, reasonably, that if it were true that David and his mother were being told by the various authorities that they could not assist, he would have expected there to have been some kind of documentary confirmation of this. In a statement dated 15 April 2021, Mr John Bates, the claimant’s solicitor, accepted that he should have insisted on some proof that the documents in question could not be obtained, stating “but David explained that the meetings were face-to-face and that any such negative declaration was not going to be forthcoming from the relevant Spanish institutions.”

1. 1. However, more fundamentally, in my judgment this should all have been sorted out and dealt with by the parties well before trial and if the defendants were dissatisfied with the disclosure that had been made, they could and should have applied to the Master for appropriate orders to be made. In Promontoria (Oak) Ltd v Emanuel [2020] EWHC 104 (Ch), Marcus Smith J stated:

“A trial is a culmination of a process. That process involves identifying and framing the issues between the parties, and then ensuring that proper disclosure of documentary evidence appropriate to the resolution of those issues takes place. Generally speaking, the issue of a party’s failure to produce an original ought to be raised and resolved well-before trial. The English courts have established procedures, taking place well before trial, to flush out the points parties are taking in relation to documents. Thus, for instance, the fact that a party is contending that a certain document is a forgery will not (absent wholly exceptional circumstances) be raised for the first time at the trial itself. There will have been anterior debate about the precise allegation being made, and the mechanism (for instance, the use of handwriting experts) whereby the allegation of forgery is to be resolved. When considering the best evidence rule, a trial judge will, plainly, take into account the interlocutory steps that have, or have not, been taken by the parties in bringing their dispute to trial.”

Although, as is apparent from this passage, that case was one which concerned the “best evidence” rule and which is therefore not directly on point, it seems to me that the principle is of universal application, namely that the court expects the parties to have taken the necessary steps to resolve issues over documents well before trial, and would certainly expect a defendant to have done so before accusing a claimant (or witness for the claimant) of having conducted a campaign of deliberate concealment. Having found, as I have, that David Otero was an honest and straightforward witness who was doing his best to assist the court, I have no difficulty in rejecting any suggestion that he had deliberately suppressed any documents and I take the view that I must decide this case on the basis of the evidence that I have even if, in some regards, that evidence is not as complete as I (and the defendants) might have wished it to be.