PROVING THINGS 241: “IT IS EXTRAORDINARY HOW MUCH OF THE CASE WAS BEING ‘PATCHED UP’ AS THE TRIAL WENT ALONG”

The judgment of HHJ Luba KC in Ibrahim v London Borough Of Haringey & Anor [2022] EW Misc 9 (CC) shows a surprising approach to evidence on the part of the both sides.

“Given the nominal value of the claim, the seriousness of the allegations of unlawful eviction and harassment and (one would have thought) the potential significance of the Court’s findings on the legal issues, it is extraordinary how much of the case was being “patched up” as the trial went along. Even on the separate third day of the trial, additional documents were being added to the trial bundle”

THE CASE

The claimant brought an action for damages, alleging harassment and unlawful eviction when he was moved from residential accommodation. The claim was put at £600,000.  The judge found that there was no breach and the action failed. However important observations were made about the evidence adduced by the parties.

THE JUDGMENT ON EVIDENCE

Having set out his finding the facts the judge specifically mentioned the difficulties that the parties had created in not providing adequate evidence to the court.
Getting to this point
  1. The Court did not receive the assistance it was entitled to expect from the parties in enabling it to achieve the above account of the facts and of the Court’s findings upon them.
  1. On the Claimant’s part, although much of Mr Ibrahim’s evidence was obviously going to be challenged and potentially unreliable (given his memory loss and literacy and language difficulties), only Mr Ibrahim himself was initially called. For no good reason, the partially corroborating witness statement of Mr Smith was accompanied by a Civil Evidence Act Notice indicating that he would not be called because he had left his former firm. He was obviously readily contactable.
  1. When prompted, an application was made that he be permitted to give oral evidence. The Claimant’s case was re-opened. Mr Smith attended and gave his oral evidence without any access to the office mobile phone which held the records of his telephone, text and WhatsApp exchanges with Mr Ibrahim and others back in May 2020. He did not have access to his former firm’s files, or any attendance notes he may have made. He made no supplementary witness statement to develop the brief account given in his statement of 15 May 2020, even though he had remained with the firm until as recently as the summer of 2021. He should not have been placed in this situation and the Court should have been better assisted in this respect.
  1. Further, notwithstanding that Mr Ibrahim had no proper grasp of reading or writing English, his witness statement was initially taken and presented to the Court in English. Only when it became plain at Court that he would need a translator in order to confirm it, were steps taken to produce an Arabic statement and have that translated into English. These deficiencies resulted in an earlier attempt to try the case being aborted. When, months later, he eventually came to give evidence, he was asked where his copy was of the form that he signed on 12 May 2020. He readily said that he still had it and ‘could bring it tomorrow’!
  1. Although Mr Lee directed criticism at both Defendants for their failure to adduce documents or witnesses who may have offered better and more relevant evidence, he could point to no application for specific disclosure made by his solicitors and no attempts by them to call the witnesses that he thought may have assisted the Court. It hardly needs adding that the Claimant’s solicitors failed to pay the initial Trial Fee on time and had to apply for relief from sanction.
  1. The conduct of the Defendants likewise was less than helpful to the Court. Only part way through Mr Hemoo’s evidence did it become clear that he personally had had nothing to do with Mr Ibrahim coming to occupy Flat 41 at the Hub or with the arrangements made between the Council, the ALMO, CAPITA and Capital in relation to his arrival at The Hub. Hasty and late measures then had to be taken to get Mr Sanusi to Court during the trial and to have a witness statement produced for him. Further, many of the documents passing between the Defendants, and referred to in my account of the facts, were adduced by them only part way through the trial. On the Council’s part, Mr Richman’s witness statement not only failed to set out the general arrangements the Council or ALMO had made to respond to the Everyone-In initiative but despite referring to his having “made enquiries and reviewed the available paperwork” it failed to disclose that he had been on duty the night Mr Ibrahim was placed at The Hub and that it may well have been he who authorised the placement.
  1. Given the nominal value of the claim, the seriousness of the allegations of unlawful eviction and harassment and (one would have thought) the potential significance of the Court’s findings on the legal issues, it is extraordinary how much of the case was being “patched up” as the trial went along. Even on the separate third day of the trial, additional documents were being added to the trial bundle.
  1. In the event, it has only proved possible for the Court to draw the strands together with the considerable assistance of counsel in making good deficiencies on the parts of their lay and professional clients. This experience must not be repeated in future cases in this Court.