PLEADING A DEFENCE: THE DIFFICULT STATUS OF A “NON-ADMISSION”: (SOMETHING ABOUT RE-USING WITNESS STATEMENTS TOO)

In Cardiff City Football Club (Holdings) Ltd, Re [2022] EWHC 322 (Ch) Mr Justice Adam Johnson found himself deciding matters relating to the pleading of the action, the scope of the trial and the admissibility of witness evidence on the first date of trial.   The judgment raises issues relating to the pleading of a “non admission”. The judge also refused to allow a party to rely on a witness statement served in different proceedings.

“Such matters plainly should have been dealt with at an earlier stage, ideally at a PTR. I hope and expect that in future cases, the importance of the PTR as a forum for dealing with procedural issues before trial will not be overlooked.”

WEBINAR ON STATEMENTS OF CASE

On the 18th February 2022 I am conducting a webinar on statements of case. Booking details are available here.

THE CASE

The petitioner brought an action for relief for unfair prejudice. The matter had reached trial. The defendant had filed an amended defence which consisted, primarily of a series of non-admissions. The court had to determine the scope of the trial based on the non-admissions. Further the petitioner had filed a witness statement from a different action.  The judge refused to allow the petitioner to rely on that statement.

THE JUDGMENT ON THE DEFENDANT’S PLEADED CASE: THE CURIOUS CASE OF THE “NON-ADMISSIONS”

The judge, as a preliminary issue, had to consider the scope of the trial following the defendant’s pleading of a series of non-admissions.

1. 1. Mr Tan then amended his Defence in what seems to me at first blush a rather curious way. The gist of it was as follows. At para. 9A of the Defence, Mr Tan said that he would buy Mr Isaac’s shares as requested in the Petition, “subject only to the resolution of the allegation concerning the 5:2 Rights Issue and the correct valuation of the shares“, which was to include whether the two sets of litigation costs had in fact had any material impact on the valuation of Mr Isaac’s shareholding.

1. 1. The Amended para. 9A of the Defence then went on to say, “Accordingly, no other matters in the Re-Amended Petition remain relevant and are now the subject of non-admissions.” In the Amended Defence, the paragraphs containing positive denials were then struck through, and in each case the relevant paragraphs in the Re-Amended Petition were met with the response that they were simply “not admitted”, and then paragraph 9A cross-referred to.

1. 1. The Reply took issue with this approach. Para. 2C of the Reply took the position that Mr Tan’s failure to plead a positive case was a breach of CPR 16.5(1) and/or was an abuse of process and was liable to be struck out. CPR Rule 16.5 deals with the contents of a Defence, and requires a defendant either to admit or deny the allegations against him, save in those cases where he is unable to admit or deny the allegation, in which case he can put the claimant – or in this case the petitioner – to proof. Here, what has been said by Mr Reade QC in submissions is that Mr Tan does not fall within this intermediate third category, because he is in a position to admit or deny the allegations against him. Indeed, before the Defence was amended, he did deny them.

1. 1. I will come back to that. To complete the picture, however, although suggested in the Reply, in fact no application to strike out the Amended Defence was made. Instead, the parties engaged with the process of disclosure. There was a contested hearing in September 2021 before ICCJ Mullen. I have been shown some of the correspondence prior to that hearing, and a note of the Judge’s rulings on disclosure. It seems that at some point either prior to the hearing or perhaps at the hearing itself, some further concessions were made. No disclosure was sought in relation to the broad question of control over the Company’s business by Mr Tan. As regards the costs of both the Langston litigation and the defamation action, the Respondents conceded that the amount of those costs, such as they were, could in principle be taken into account in valuing Mr Isaac’s shares, and a direction was therefore given for the amount of those costs to be ascertained, presumably so they could be provided to the parties’ experts. Otherwise, as to matters of substance, the only significant category of disclosure ordered was in connection with what was called Issue 7. That was the question of the 5:2 Rights Issue. Category C, i.e. search based disclosure, was ordered in connection with “[t]he motive, intentions and legality of the actions of the Company and/or Mr Tan as regards the allotment of shares in the Company“, the search to cover a date range of 2015 to 2018.

1. 1. I understand from Mr Reade QC that an argument based on CPR 16.5 was relied on at the hearing in September. It is not mentioned in the brief note of the Judge’s reasoning, but it seems that whatever was submitted on that topic did not find favour, or at any rate the Judge proceeded on the basis that the only live allegation of unfair prejudice to be determined was effectively that in relation to the 5:2 Rights Issue, and that everything else went only to valuation.

1. 1. There was no challenge by way of appeal to any of the determinations made by ICCJ Mullen, and thereafter the parties appeared to be preparing for a trial which would deal broadly with two topics, namely (1) the legitimacy of the 5:2 Rights Issue, and (2) valuation of the Company. As to valuation, further directions were given by the Court in December 2021. Expert reports were prepared conducting valuation exercises at 2 dates, i.e. a 2018 value prior to the May 2018 Rights Issue, and a current value. That would suggest that the focus of Mr Isaac’s case is on the May 2018 Rights Issue. The principal form of relief he now seeks is an order for the acquisition of his shareholding as it stood prior to what he says was the dilutive Rights Issue.

1. 1. Now comes the problem. After his solicitors wrote a letter on 3 January 2022 in which they proposed a reduction in the anticipated length of trial, from 12 days to 7 days, in light of the way the case had developed, Mr Isaac then served a Witness Statement on 7 January 2022. This was a short statement in a form which appears compliant with the new Practice Direction 57AC, but it also cross-referred to, and purported to incorporate by reference, the contents of a further, lengthy witness statement made by Mr Isaac in the discontinued defamation proceedings, dealing with the whole history of Mr Isaac’s dealings with the Company and the Club and thus many of the allegations of unfair prejudice as originally pleaded in the Petition.

1. 1. Most unfortunately, and for reasons which are still not entirely clear to me, there was no PTR in this case. Thus, the issues which this procedural background gives rise to crystallised only on the first day of the trial before me. The upshot was that the whole of the first day of trial was taken up hearing submissions on those issues and on their practical implications. Such matters plainly should have been dealt with at an earlier stage, ideally at a PTR. I hope and expect that in future cases, the importance of the PTR as a forum for dealing with procedural issues before trial will not be overlooked.

1. 1. At any rate, the issues are as follows. Broadly speaking, the Respondents, and Mr Tan in particular, say that the scope of the present trial should be limited, as ICCJ Mullen thought they should be and as the parties on the face of it appear to have assumed, so that they are focused on the question of the 5:2 Rights Issue and the question of valuation. Mr Tan says there is no justification for the Court going wider than that, essentially because none of the other original allegations of unfair prejudice could possibly have any impact on the value of the Company. For example, the Respondents having already conceded that the Langston costs and the defamation action costs can be brought into account in valuing the Company, there is no utility in the Court investigating more broadly whether the allegations of unfair prejudice in relation to those actions are properly made out. In any event, says Mr Tan, the Court cannot do so because there has been no disclosure in relation to such issues and he has not filed any evidence dealing with them.

1. 1. Mr Isaac however relies again on his CPR Rule 16.5 argument, and makes the point that the “non-admissions” advanced by Mr Tan are effectively inadmissible and improper, and he says the sanction should be for the Court to proceed on the basis that all the underlying allegations of unfair prejudice in the Petition should be taken to have been admitted, or alternatively that the Court should accept his (i.e. Mr Isaac’s) evidence, including in particular his Witness Statement served in the defamation action, and proceed on the basis that the allegations are all made out. He also makes the more fundamental point that the Court has no jurisdiction to order relief under s.996 CA unless it is satisfied that there is in fact unfair prejudice, and so that issue has to be grappled with head on. In other words, there is no ducking the question whether there was unfair prejudice, and the Court must come to a view about it. That can best be done by treating unfair prejudice as having been admitted. Only then will the Court be able to exercise its wide remedial discretion effectively. The Court should avoid being sucked into the types of problem which arose in Profinance v. Gladtsone [2001] EWCA Civ 1031, where the Court of Appeal said that the concessions made at first instance provided only the most meagre basis for the Court to exercise its remedial discretion, in particular as to valuation date.

1. 1. Against this background, how best to proceed? I will state a number of conclusions and then indicate how I think the trial should unfold.

1. 1. To begin with, I am entirely unpersuaded that I should proceed on the basis that all the broad allegations in the Petition are admitted, or made out on the evidence. I agree with the general proposition that Mr Tan’s approach of not admitting the allegations he had previously denied was unsatisfactory and likely impermissible, but I am unpersuaded that, as matters have developed, the appropriate response at this stage should be for the allegations to be treated as having been admitted for the purposes of the present trial. That is largely because of what happened in relation to disclosure. During submissions Mr Reade QC drew attention to a case on CPR 16.5, SPI North v. Swiss Post International [2019] EWCA Civ 2865. In that case, the Court emphasised at [53] that CPR 16.5 must be looked at in context, such context being that the pleading phase of a case is merely the first step in a much longer process, which involves the court in the later stages of an action having “ample tools in its armoury to review and refine the issues, and to require the provision of relevant information or documents by a reluctant or obstructive defendant.” The difficulty here for Mr Isaac is that the Court has made use of at least some of those tools, and has made orders for disclosure which have helped define the issues for this trial, and there has been no appeal against any of those disclosure decisions. On the contrary, the parties appear to have proceeded on the joint basis that the issues between them were accordingly narrowed.

1. My second point however is this. It is plainly correct, as Mr Reade QC points out, that the Court’s jurisdiction to order relief is engaged only where unfair prejudice is made out. The structure in Mr Tan’s Amended Defence at para. 9A makes no obvious concession of unfair prejudice. On the contrary, the structure he adopts appears to involve him saying that will buy Mr Isaac’s shareholding but only if he makes good his case on the 5:2 Rights Issue, and otherwise he will agree to certain matters being taken into account in the valuation exercise, but without admitting any unfair prejudice. I think that unfortunately does mean that the scope for the Court to exercise its remedial discretion may be rather limited in this case. In the absence of either admissions or findings in relation to the broader grounds of unfair prejudice, those are not matters that can have any bearing on the exercise of that discretion. I have been anxious about this point, but ultimately have come to the view that a pragmatic response is the best one. It is true that the discretion may have to be exercised within a fairly narrow compass, but that may not matter much on the case as it has developed, because the exercise of the broad residual discretion is most likely to be material when it comes to selecting the appropriate valuation date, and the only alternative to a present day valuation advanced by Mr Isaac is a valuation in May 2018, before the 5:2 Rights Issue. It seems to me likely that, if the allegation of unfair prejudice in relation to the Rights Issue is upheld, that will provide in and of itself sufficient raw material for the Court to be able to exercise its discretion in favour of ordering a 2018 valuation date, if that is what it is persuaded is the correct course.

THE DEFECTIVE WITNESS STATEMENT

The judge also considered the petitioner’s witness evidence. In particular the attempt to rely on a witness statement served in earlier proceedings.

1. My third point is this. I do not think it is permissible for Mr Isaac to rely, as his trial witness statement in this action, on the witness statement statement served he served in connection with the earlier defamation proceedings. It was obviously not prepared in accordance with PD 57AC. It contains evidence on matters which on any view are beyond the scope of the present trial. Having regard to para 5(2) of PD57AC, I refuse permission for Mr Isaac to rely on it. That will leave in the record of course his short witness statement served on 7 January this year. I will consider any application Mr Isaac may choose to make to have permission to serve a replacement witness statement or, perhaps more realistically at this stage, for part of his evidence in chief to be given orally.