FAILURE TO SERVE A NOTICE OF NON-ADMISSION UNDER CPR 32.19: WHAT ARE THE PRACTICAL CONSEQUENCES?
There is much for practitioners to read in the judgment of HHJ Paul Matthews in Taylor v Savik & Anor [2024] EWCC 7. However I want to isolate out the judge’s observations on CPR r.32.19. In particular the question of whether, if a notice is not served under that rule, the opposing party is deemed to accept everything in the unchallenged document.
“Even if the document is authentic, and even if it is admissible in evidence, it does not follow either that there cannot be any inconsistent evidence admitted on the part of the trustee, or that the trustee (or the court) must accept that what the document says is true. That is a matter for the court in weighing the evidence.”
THE CASE
The applicant was the trustee in bankruptcy of the first respondent’s husband. The claim sought a declaration that property owned by the first respondent was purchased with money belonging to the second respondent – the bankrupt husband. The action failed.
CPR 32.19
The judge considered a submission made in relation to CPR 32.19. The applicant had not served a notice under that rule disputing the authenticity of the second respondent’s documents.
WHAT CPR 32.19 SAYS
“Notice to admit or produce documents
32.19
(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.
(2) A notice to prove a document must be served –
(a) by the latest date for serving witness statements; or
(b) within 7 days of disclosure of the document, whichever is later.”
THE JUDGMENT ON THIS ISSUE
A procedural point
36. There is a small procedural point with which I must deal. The second respondent submitted that, as the trustee had not served a notice under CPR rule 32.19, she could not challenge the evidence put forward by the second respondent in the documents which she disclosed. This is not right. Rule 32.19 provides that “A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.”
37. The trustee not having served the relevant notice cannot challenge the authenticity of a document disclosed to her by the first respondent. The document is authentic, that is, it is what it purports to be. But the rule does not deal with either of two other important matters. One is the admissibility of the document in evidence. To some extent that is governed by para 27.2 of the practice direction to Part 32. The other is the truth of the content of the document. Even if the document is authentic, and even if it is admissible in evidence, it does not follow either that there cannot be any inconsistent evidence admitted on the part of the trustee, or that the trustee (or the court) must accept that what the document says is true. That is a matter for the court in weighing the evidence.