Stokoe Partnership Solicitors v Grayson & Ors

The partner of the firm with conduct of the Al Sadeq litigation is Haralambos Tsiattalou. At the end of March 2020 Mr Tsiattalou was contacted via an intermediary by a man named Oliver Moon. Mr Moon said that he had been instructed to obtain confidential information about the firm, in particular banking information. His instructions had come from a man named Gunning but his understanding was that Gunning in turn was acting at the behest of Paul Robinson (the First Defendant in the Claim number QB-2020-002218). In order to establish that Mr Robinson was involved as suggested by Mr Moon, the firm created two documents which purported to contain confidential banking information. In fact, the documents had been created so as to remove confidential information. The firm was able electronically to track the documents and to identify any person who accessed them. By this route the firm (with the assistance of an investigation agency) identified Mr Robinson.

On 29 June 2020 the firm issued a Part 7 claim against Mr Robinson and the company by which he operated. The proceedings were for injunctive relief to restrain Mr Robinson from actual or threatened breaches of confidence. In addition, the firm sought a disclosure order pursuant to Norwich Pharmacal v Customs and Excise Commissioners [1974] AC

The firm specified the Norwich Pharmacal order sought. It required Mr Robinson to swear an affidavit providing full information on three issues: the identity of the person providing him with instructions; the extent of the confidential information already obtained from the firm; the identity of those to whom he had passed on the confidential information.

On 5 July 2020 Mr Robinson attended the offices of the firm and answered questions relating to his activity vis-à-vis the firm. Either on that day or on the day following he provided the firm with his affidavit in draft form. On 7 July 2020 the case was considered by Chamberlain J. He made an order recording that the parties had compromised the claim on terms. For my purposes the relevant term is the order set out at paragraph 1 of the judge's order, namely that Mr Robinson was to swear an affidavit by 4.30 p.m. on that day dealing with disclosure. In fact, the affidavit had already been sworn in the same terms as the draft already provided to the firm. The affidavit was required to deal with the following:

The identity of any person who had requested Mr Robinson or his company to obtain confidential information from the firm.

The manner in which the requests were made including whether they were in writing, the gist of the requests and a copy of any written request retained by Mr Robinson.

What confidential information was obtained from the firm.

To whom the confidential information was provided and the circumstances of any such provision.

Paragraph 7 of the judge's order recorded the nature of the compromise. All further proceedings against Mr Robinson and his company were stayed save for the purpose of enforcing the terms of the order.

Mr Robinson' affidavit ran to 39 paragraphs. The essential matters to which I need to refer are as follows:

His instructions came from Patrick Grayson who was a private investigator and by whom Mr Robinson had been instructed in the past.

He was first instructed at a meeting at the Goring Hotel in Belgravia at some point in January 2020. He was able to produce messages dated 30 January 2020 which showed a meeting on that date.

At the meeting Mr Grayson asked Mr Robinson whether he knew of anyone capable of obtaining bank records and other information relating to the firm in response to which Mr Robinson said that Mr Gunning would be able to do so.

At no point did Mr Grayson identify by whom he was instructed and Mr Robinson did not ask him.

Communication between Mr Robinson and Mr Grayson was by means of an encrypted application named Signal. Mr Robinson did not have a record of the messages sent and received via this application because Mr Grayson had configured the application to delete messages automatically after 12 hours. He did produce screenshots of the record of the voice calls carried out via the application i.e. the fact of the calls and when they were made.

The gist of the communication between Mr Robinson and Mr Grayson after the meeting in January 2020 was following up on Mr Grayson's original request.

Mr Robinson was paid £5,000 in cash by Mr Grayson. The total fee agreed was £10,000. The balance had not been paid.

The confidential information obtained consisted of the two documents created by the firm following the contact from Mr Moon. Mr Robinson did not request or obtain any other confidential information.

Mr Gunning passed information to Mr Robinson via email. Mr Robinson would pass on the information to Mr Grayson.

On one occasion thought to be in early March 2020 Mr Robinson had met Mr Grayson in Sloane Square and had given Mr Grayson a hard copy print out of the information passed by Mr Gunning together with a USB stick containing the same information in electronic form.

On other occasions Mr Robinson sent Mr Grayson material received from Mr Gunning via an encrypted email account. Mr Robinson had deleted the e-mails before being served with the claim.

Mr Robinson had no knowledge of the purpose for which the information was required. He knew nothing about any surveillance of Mr Tsiattalou during the solicitor's visit to Dubai in February 2020.

Mr Robinson also made passing reference to a man named Stuart Page as being someone with whom he had worked from time to time. I infer from the terms of the questions apparently put to Mr Robinson prior to him swearing his affidavit that Mr Page was someone already regarded by the firm as a relevant party. Mr Robinson did not suggest that Mr Page was involved in the dealings he had with Mr Grayson.

On 16 July 2020 the firm issued a Part 7 claim (namely Claim number QB-2020-002492) against Mr Grayson and Mr Page and their respective companies. In relation to Mr Grayson (the First Defendant in that claim) the details of the claim principally were drawn from the material set out in the affidavit of Mr Robinson. I understand that the firm were unaware of the existence of Mr Grayson prior to Mr Robinson identifying him. No matter was pleaded beyond the material provided by Mr Robinson.

On 17 July 2020 the firm issued applications for interim relief from Mr Grayson and Mr Page in similar terms to the application made in respect of Mr Robinson. On 24 July 2020 Tipples J made an order by consent upon the applications. In relation to Mr Grayson the consent order largely consisted of recitals of undertakings given by him. The order provided a definition of confidential information. The definition was as follows:

Mr Grayson's affidavit is dated 29 July 2020. He set out the definitions of Confidential Information as recited in the consent order. He said that no-one had requested him to obtain Confidential Information from or pertaining to the firm. He had not obtained any such information. In consequence, he had not provided such information to anyone. He concluded by stating "I never asked Mr Robinson to obtain Confidential Information relating to the Claimant (firm)". Wherever he used the term "Confidential Information" in his affidavit, Mr Grayson capitalised the first letter of each word. The proper inference to be drawn from that is that he was seeking to be strict in his definition of the term i.e. by reference to the definition in the order.

The firm took the view that the contents of Mr Grayson's affidavit were inconsistent with the affidavit sworn by Mr Robinson. On 10 August 2020 the firm wrote to the solicitors acting for Mr Grayson and made a request for further information pursuant to Part 18 of the Civil Procedure Rules. The firm set out two separate passages from Mr Robinson's affidavit and asked inter alia the following:

On 2 September 2020 the firm served the Particulars of Claim in the action against Mr Grayson and Mr Page. In relation to Mr Grayson the case as pleaded was based on the affidavit of Mr Robinson together with affidavit evidence previously obtained from Mr Gunning and Mr Moon. Three requests for information concerning the firm were pleaded as follows:

On or about 2 April 2020, Mr Robinson requested Mr Gunning to obtain the banking co-ordinates of the Claimant;

On or about 9 April 2020, Mr Robinson requested Mr Gunning to access the Claimant's main bank account and to obtain transactional data for the past three months;

On or about 21 April 2020, Mr Robinson requested Mr Gunning to obtain information as to the "movements in and out of Dubai - for Feb 2020" of Mr Haralambos Tsiattalou.

The requests as pleaded were termed "the Example Requests". It was averred that these were the only requests known to the firm at the time of the pleading. The right to add other matters should they become known was reserved………

The evidence of Mr Robinson was the foundation of the firm's case against Mr Grayson. Indeed, it properly can be said that it was and is almost the entirety of the firm's

The Defence of Mr Grayson was served on 30 September 2020. It admitted that a meeting between Mr Grayson and Mr Robinson took place at the end of January 2020 at the Goring Hotel. It denied that at the meeting Mr Grayson asked Mr Robinson if he could obtain banking information relating to the firm. Mr Grayson's case was that the meeting was a social catch-up between friends. His case further was that he had not sought or obtained any information relating to the firm of the kind alleged. At the same time as the Defence Mr Grayson responded to the request for further information which had been made in August 2020 by the firm. It was said that the request had been superseded by the later pleadings, the position of Mr Grayson having been made clear in his Defence.

On 9 October 2020 the firm issued an application notice both in the proceedings involving Mr Grayson and the stayed proceedings to which Mr Robinson was a party. The nature of the application in each case effectively was identical. I recite the order sought against Mr Grayson:

The litigation underlying the claims against Mr Robinson and Mr Grayson involves very serious allegations which are of considerable public interest.

Ever since it became apparent in early 2020 that the firm was acting in the Al Sadeq litigation, the firm, in particular Mr Tsiattalou, has been subject to increasingly worrying attempts to subvert its conduct of the litigation. Evidence served two days before the hearing on 11 November 2020 showed that there had been a concerted attempt to mount a cyber-attack on the firm.

What has happened to the firm – which shows every sign of continuing – is of the highest order of seriousness. The firm has been attacked as has (indirectly) Mr Al Sadeq. The rule of law is under threat.

Mr Robinson has admitted participation in efforts to obtain confidential information. He was not acting on his own behalf. He was merely doing the bidding of others. The court should take urgent action to allow the identification of the malicious actors engaging in the attacks on the firm.

The purpose of the Norwich Pharmacal jurisdiction is to allow a party to identify the ultimate wrongdoer. In this case that purpose is being thwarted not only by Mr Grayson but also by Mr Robinson. In order to achieve the purpose intended by the orders made in July 2020, it is just and convenient for crossexamination of both men to be ordered.

The cross-examination would not be anything to do with the action involving Mr Grayson which currently is moving towards trial. It would be solely designed to achieve the end meant to be achieved by disclosure i.e. identification of the ultimate wrongdoer.

Mr Grayson in effect consented to a Norwich Pharmacal order when he undertook to swear a disclosure affidavit. By definition that meant that he accepted that he was mixed up in wrongdoing. The stance he took in his affidavit was inconsistent with that position. Cross-examination was the only reasonable and effective means of resolving the matter.

The judge noted at paragraph [25] of his judgment the well-established elements of an application for Norwich Pharmacal relief. At paragraph [26] he set out five principles listed in Gee on Commercial Injunctions, which are those set out in the judgment of Vos J in Jenington International Inc v Assaubayev[2010] EWHC 2351 (Ch). He then referred to two cases in which cross-examination on a Norwich Pharmacal affidavit was ordered: Kensington International Ltd v Republic of Congo[2006] 2 CLC 588 and JSC BTA Bank v Solodchenko [2011] EWHC 843 (Ch). I shall return to these authorities later.

He continued at paragraph [34]:-

The applications in respect of Mr Robinson and Mr Grayson are separate and must be considered separately. I shall deal first with Mr Robinson. His case is straightforward. His affidavit was sworn after the firm and those representing the firm had had a significant opportunity on 5 July 2020 to question him directly. It has not been suggested that the affidavit differed in any material respect from what Mr Robinson said on 5 July 2020. I infer that there was no material difference. Had there been, procedural steps would have been taken forthwith. When the order was made in his case, the firm knew precisely what Mr Robinson was going to disclose. The Part 7 claim was merely a means to an end which had been achieved by the date of the order.

The claim made by the firm in the proceedings against Mr Grayson is based almost entirely on the evidence set out in the affidavit. The Particulars of Claim conclude with a statement of truth. That must mean that the firm is proceeding on the basis that the affidavit of Mr Robinson is true. That position is in stark contrast to the circumstances of Dr Nwobodo and Mr Ereshchenko in the authorities to which I have referred.

The basis upon which it is now suggested that Mr Robinson should be subjected to cross-examination is strained. In the firm's skeleton argument, it is said that "the possibility that he has not revealed everything and given a fully truthful account cannot be discounted, especially in view of Mr Grayson's inconsistent evidence". The general proposition that a person who has sworn an affidavit has not revealed everything could apply in almost every case. That can hardly be a reason for ordering cross-examination, especially when such an order is to be the exception rather than the rule. Here, the general proposition is said to be supported by the inconsistency with Mr Grayson's account. I regret that I do not follow that argument. Mr Grayson's evidence is that he did not give Mr Robinson any instructions to seek confidential information. The firm's case is that he did. The firm has pleaded its case on the basis of the truthfulness of Mr Robinson's evidence to that effect. In those circumstances the fact that Mr Grayson has given an inconsistent account is of no assistance at all in supporting a suggestion that Mr Robinson has not revealed everything. […]

Finally, the judge set out four reasons which led him to the conclusion that an order for cross-examination could not be made:-

The second difficulty is that the case against Mr Grayson is limited in scope. The pleaded case is that there were three attempts to obtain confidential information as set out at paragraph 15 above. Each of the attempts occurred in April 2020. Whether the sort code and account number of the firm's bank account was confidential information is doubtful. Many solicitors will include those details on any invoice they submit. The same lack of confidentiality could be said to apply in relation to historic information concerning Mr Tsiattalou's travel arrangements. Confusingly the pleaded case is that whatever information in fact was obtained was provided to Mr Grayson in early March 2020. For Mr Grayson now to be required to attend for cross-examination on events which occurred some seven months ago and which were of such limited ambit does not seem to me to be an obvious requirement taking into account what is just and convenient. Mr Grant argued that this approach fails to take account of the continuing depredations of the firm's business. The submission is that cross-examination is required "so that we can put a stop to what is happening". I accept that the case against Mr Grayson is not be considered in a vacuum. If he gave instructions to Mr Robinson in April 2020 in respect of information relating to the firm and he did so at the request of another (potentially the ultimate wrongdoer), it is a possible inference that the wrongdoer responsible for those events is concerned with more recent events. But it is not a clear and inevitable inference. What is just and convenient must be judged principally by reference to the wrongdoing in respect of which the Norwich Pharmacal relief was obtained.

The third difficulty is that this is not a case in which the firm can call upon the same kind of material as was available to the claimants in Kensington and the Ereshchenko case. Those cases were different in nature since they were principally concerned with asset tracing, an exercise which is bound to give rise to documentary and digital material in relation to which effective cross-examination can be mounted. The chronology in those two cases in simple terms was that the affidavit was sworn following which significant material emerged which contradicted its contents and which demonstrated the inadequacy and untruthfulness of the affidavit. In the Ereshchenko case there were two untruthful affidavits. Here Mr Grayson has given an account which is inconsistent with that of Mr Robinson. Had e-mail traffic or other documents emerged which demonstrated that Mr Grayson in fact had engaged with Mr Robinson in some kind of search for information, that might have allowed a conclusion that cross-examination would be just and convenient. Beyond the limited material which was produced by Mr Robinson at the outset, no such digital or documentary material is available.

The fourth matter of relevance is that, given the proceedings against Mr Grayson are continuing and the respective cases have been pleaded, there is scope for the firm to use the mechanism of Part 18 to obtain further information. The request for further information first requested in August 2020 has not yielded any useful result so far as the firm is concerned. However, the issue has yet to be considered by a Master or judge. Part 18 gives the court a wide power to order additional information in relation to any matter in dispute in the proceedings. I have not been asked to consider how that power might be exercised on the facts of this case but that it is a potential route available to the firm cannot be disputed. This is a highly relevant consideration in respect of whether ordering cross-examination would be just and convenient.

Taking all of those matters into account, I am satisfied that, even assuming there is jurisdiction to order cross-examination in the circumstances of this case, such an order is not appropriate in relation to Mr Grayson. It would not be just and convenient to make such an order.

It follows that both applications fail. At the end of his oral submissions Mr Grant said that the Norwich Pharmacal orders had not succeeded in their aim for "extraordinary reasons". It does not seem to me that for two witnesses to contradict each other is extraordinary. Clearly it is frustrating for the firm given the lengths to which they have gone in pursuing this matter. However, it is not such an exceptional circumstance that either Mr Robinson or Mr Grayson should be required to attend for cross-examination.”

The Appellant notes that the judge proceeded on the basis that it was faced with two inconsistent affidavits from Mr Robinson and Mr Grayson and that one of them must have been lying. It is submitted that “given the Claimant’s predicament, there was therefore a strong prima facie case that Mr Grayson should attend for crossexamination”. It argues that none of the judge’s four reasons for rejecting that case was tenable.

The judge’s first and (as I see it) principal reason for refusing the application was the one given in paragraph [40] of his judgment, that “cross-examination on the affidavit would pre-empt cross-examination at trial” and that it cannot be just and convenient to order cross-examination on a Norwich Pharmacal affidavit sworn by a party to substantive proceedings concerning overlapping issues. The argument, which Mr Tim Lord QC developed before us, that this was an error of principle, is well summarised in the grounds of appeal as follows:

It is unrealistic. There is no date for a trial. Meanwhile, the ultimate wrongdoer remains at large.

The reason could only have weight if Mr Grayson was guaranteed to give evidence at trial. There is no such guarantee.

The focus of cross-examination in this application would be upon those who instructed Mr Grayson, not whether Mr Grayson’s actions were wrongful.

The Claimant was prepared to undertake not to use any material obtained via cross-examination at any future trial.”

Turning to the other three reasons given by the judge, the grounds of appeal continue:

Third, at §42, the Judge relied upon the fact that there was limited material available to deploy in cross-examination. However, the essential difference between Mr Robinson and Mr Grayson is stark, and Mr Grayson’s answers to date suggest that he has responded in an extremely technical manner. The purpose of cross-examination was to elicit more complete answers from Mr Grayson, and thus to reveal the identity of those orchestrating the campaign against Stokoe. It is a legitimate expectation that the process of giving evidence under oath before a High Court Judge would, by its solemn and rigorous nature, cause or compel Mr Grayson to give a true account of his part in material matters.

Fourth, at §43, the Judge stated that the Claimant could use CPR Part 18. However, this was wrong in principle: CPR Part 18 is not an appropriate substitute for cross-examination when the veracity of an affidavit is in issue.” [The grounds of appeal went on to describe subsequent developments in the litigation, to which I turn next.]

After the order of Tipples J made on 24 July 2020 had produced the short and unhelpful response contained in Mr Grayson’s affidavit on 29 July 2020, the Claimant tried the more conventional route of a request for further information under CPR Part 18. The first such request, served on 10 August 2020, produced, after some protestation, a response by Mr Grayson and his company on 30 September 2020 which, in the manner of a pleading before the Woolf reforms, said that the Claimant was not entitled to the information sought. A further request was served on 20 November 2020, to which a similarly unhelpful response was given on 4 December 2020. Master Brown, at a hearing on 11 December 2020, then made an order requiring Mr Grayson to give substantive answers to a number of the requests, verified by a statement of truth. That order was stayed pending an application to a judge for permission to appeal. When by an order made on the papers on 12 March 2021 Johnson J refused permission to appeal, adding that the application was totally without merit, Mr Grayson was at last compelled to answer the Claimant’s questions about whether he or his company had ever given instructions or requests (directly or indirectly) to Mr Robinson to investigate the Claimant and/or to obtain information about the Claimant.

The response dated 19 March 2021 stated (among other things) that Mr Grayson was interested in the Claimant’s financial affairs as a result of conversations with Mr Nick del Rosso of Vital Management Services. The Claimant says that Mr del Rosso’s name could and should have been provided months earlier.

The Appellant seeks to rely on further new material which was not available to the judge. On 22 March 2021 Mr Page and his company, the Third and Fourth defendants

In my view the fresh evidence should be formally admitted. It is well established that the principles of Ladd v Marshall[1954] 1 WLR 1489 do not apply in their full rigour to appeals against interlocutory decisions. It would be wholly artificial to ignore pleadings served since the order of William Davis J. I also agree with the submission made by Mr Lord that it would be unjust not to take the disclosed documents into account. They do not show that in swearing the affidavit ordered by Tipples J Mr Grayson was in contempt. He was entitled as a matter of law to answer the question exactly as it was drafted. But they do show that, in responding as he did, Mr Grayson was sailing very close to the wind.

Although the judge gave four reasons (or, as he described them, “difficulties”) which led him to refuse the Claimant’s application, the most important by far and the one which (if I may say so) justified the grant of permission to appeal to this court, was the first. It raises an important question on the circumstances in which a defendant to a claim can be cross-examined prior to trial.

CPR 32.7(1) provides that “where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence”. As the notes to this rule in the White Book make clear, the evidence concerned may be in a statement of case, an affidavit, a witness statement, a witness summary or an application notice.

It appears to have been common ground before the judge, and was again before us, that the court may order such cross-examination whenever it is “just and convenient”. This hallowed phrase is contained in s 37 of the Senior Courts Act 1981, which deals with the power of the High Court to grant an injunction, and has been held by this court to apply to applications to cross-examine a deponent to an affidavit in answer to an order ancillary to a freezing injunction. The present case does not involve an injunction, and it is therefore less obvious that the s 37 test is the right one. But even assuming that it is, the phrase “just and convenient” does not confer a discretion of infinite width. The discretion must be exercised in accordance with established principles.

The jurisdiction to order disclosure established in Norwich Pharmacal v Commissioners of Customs and Excise[1974] AC 133, in its classic form, is exercised against an innocent third party who has become mixed up with the tortious activities of a wrongdoer. In Norwich Pharmacal itself the appellants owned a patent for a chemical compound which they alleged was being infringed by illicit importations into this country. Their claim against the Commissioners of Customs and Excise did not suggest that the commissioners were themselves infringing the patent: all the appellants wanted was to see the customs documents which might reveal the names of the importers. But here the Claimant does not say that Mr Grayson has innocently become mixed up in wrongdoing: far from it. He is a defendant to a claim against him seeking damages and other relief for conspiracy with others to injure the Claimant.

English law does not generally permit, save by consent, depositions, in other words oral interrogation of an opposing party, except at a trial where that party has chosen to give evidence. Examination of a judgment debtor is an obvious and long-standing exception; and it should be noted that an order for a judgment debtor to attend for examination can be endorsed with a penal notice (CPR 71.2). So too, since the 1980s, is the jurisdiction to order cross-examination on an affidavit sworn in answer to an application for a freezing injunction containing an order for disclosure of the whereabouts of assets. But there the court is not assisting the claimant to establish its substantive case against the defendant: it is merely seeking to protect the assets from being concealed, dissipated or transferred abroad so as to frustrate the effectiveness of any judgment which the claimant will obtain at trial.

The jurisdiction to order cross-examination on an affidavit giving disclosure of assets as a remedy ancillary to a freezing injunction was first established by the decision of this court in House of Spring Gardens Ltd v Waite[1985] FSR 173. In Yukong Line Ltd of Korea v Rendsburg Investments Corporation of Liberia (The Rialto)[1996] EWCA Civ 759 Phillips LJ said that an order for cross-examination on an affidavit in what was then called a Mareva injunction case was an exceptional measure. He continued:

In Jenington International Inc v Assaubayev Vos J said at [22] that the requirements for ordering cross-examination in a freezing injunction case may be summarised as follows:

generally cross-examination in aid of an asset disclosure order will be very much the exception rather than the rule;

it will normally only be ordered where it is likely to further the proper purpose of the order by, for example, revealing further assets that might otherwise be dissipated so as to prevent an eventual judgment against the defendants going unsatisfied;

it must be proportionate and just in the sense that it must not be undertaken oppressively or for an ulterior purpose. Thus, it will not normally be ordered unless there are significant or serious deficiencies in the existing disclosure; and

cross-examination can in an appropriate case be ordered when assets have already been disclosed in excess of the value of the claim against the defendants.”

At [74] Vos J said:-

In Matthews and Malekon Disclosure (5^th Edition, 2017) the authors write:-

As the judge noted, there are very few examples of cross-examination being ordered on an affidavit sworn pursuant to a disclosure order in the Norwich Pharmacal jurisdiction. Kensington International Ltd v Republic of Congo[2006] 2 CLC 588 concerned proceedings taken by Kensington after that company had purchased debts owed by the Republic of Congo. The Congo had gone to great lengths to avoid meeting those debts. The Congo's assets principally consisted of oil, which it traded in a convoluted and arcane manner in an effort to hide its interest in the oil. Dr Nwobodo was an individual said to be involved in the running of a company through which the Congo traded oil. Kensington obtained a search order against Dr Nwobodo as part of the process of enforcement of a judgment obtained against the Congo. In connection with that order he swore an affidavit, the content of which was sparse and gave little or no detail of his dealings with the Congo and its oil.

Kensington applied for an order requiring Dr Nwobodo to submit to cross-

Morison J described his order as a “blended” order. Thus, it was not an order made solely to enforce a disclosure affidavit. But it is important to note that it was an order made after a judgment and in order to assist in execution of that judgment. As such it seems to me to be analogous to an order for cross-examination of a judgment debtor. I agree with Morison J that the Norwich Pharmacal jurisdiction is apt to cover postjudgment situations.

JSC BTA Bank v Solodchenko and others[2011] EWHC 843 (Ch) was a decision of Henderson J in the course of the complex and long-running Ablyazov litigation. It concerned attempts by a Kazakh bank to trace and to recover huge sums of money appropriated dishonestly by senior managers of the bank. The misappropriated funds were channelled through various companies, one of which was called Eastbridge. A Mr Ereshchenko for a number of years was a director of Eastbridge. There came a point at which the court made freezing and disclosure orders against Mr Ereshchenko.

Mr Ereshchenko made a witness statement which was served in the proceedings. His affidavit, sworn a few days later, repeated what was set out in his witness statement. He said that had little knowledge of the supposed involvement of Eastbridge in the misappropriated assets and that he knew nothing of the other companies. He stated that he had no access to relevant documents.

On the evening of the day on which the witness statement was served, Mr Ereshchenko was seen to go to the premises of a firm of accountants in a white van. He took away a large number of document boxes. He delivered them to a storage unit. As a result of these events the bank obtained a search order in relation to the unit. The documents disclosed that Mr Ereshchenko's involvement was significantly greater than he had disclosed in his affidavit.

Henderson J made an order requiring Mr Ereshchenko to attend for crossexamination. He said at [50] that he was “satisfied that there is no other obvious person from whom to seek information about the role of Eastbridge and the tracing of the disputed assets”. At [54] he said that “it is common ground that the focus of the cross-examination must be on ensuring compliance with the disclosure order, and that it should not be permitted to become a roving inquiry into the general merits of the action, or indeed of the claim against Mr Ereshchenko himself”.

I consider that William Davis J was right to describe the order made by Henderson J against Mr Ereshchenko as being essentially about asset tracing. Mr Ereshchenko was not being ordered to set out his defence to the allegation of fraud but to explain the apparent destruction of evidence.

At least one other order for cross-examination of a respondent to a disclosure order was made in the Ablyazov litigation (see JSC BTA Bank v Ablyazov [2015] 1 WLR 1547 at [11]) but there is no reported information about the basis on which Cooke J made that order.

I do not accept the submission on behalf of the Appellant that once Tipples J (by consent) made an order for disclosure not merely in the form of a witness statement or the provision of further information under CPR 18 but by affidavit, the door was automatically open to cross-examination on that affidavit. As noted above, CPR 32.7 is of general application. Under the old Rules of the Supreme Court it was usual for all evidence in support of or in opposition to applications for interlocutory injunctions to be on affidavit. The authorities such as House of Spring Gardens and Yukong v Rendsburg proceed on that basis. Affidavits are still required in certain types of case, such as freezing injunctions and search orders, but not in others. I do not accept that by consenting to provide an affidavit (as opposed to, say, a witness statement verified by a statement of truth) in July 2020 Mr Grayson was automatically opening himself up to cross-examination in order to assist the Claimant in establishing with whom he had, on their case, conspired to commit torts against it.

The judge recorded that the Claimant had conceded that it would have to give an undertaking that any material obtained in cross-examination would not be used against Mr Grayson at trial. Mr Lord told us that he doubted whether that concession had been rightly made. For my part I do not see that it could be effective in practice. No doubt an order could be made that answers given on such a cross-examination could not themselves be put in evidence at the trial save by leave of the court. But that would give only very limited protection to the defendant.

I consider that the judge’s first reason for refusing cross-examination was a sound one. Witness statements are not due to be exchanged until 14 May this year, and until then little is known about what evidence Mr Grayson will put forward. All one can say at this stage is that if the case goes to trial and Mr Robinson’s evidence is accepted Mr Grayson will be in grave difficulties. But the Claimant is not entitled to an order that he must attend for cross-examination prior to that trial and be liable to imprisonment for contempt if he refuses to comply.

In those circumstances it is not necessary to deal in detail with the judge’s other reasons at paragraphs [41]-[43]. I do not agree that the case against Mr Grayson is “limited in scope” as he said in paragraph [41]; and if it were, that would if anything be a pointer in favour of allowing cross-examination on issues unconnected with that limited scope. I have already dealt with the distinctions between the present case and the decisions in Kensington International Ltd v Republic of Congo and JSC BTA Bank v Solodchenko. Finally, I agree with the judge’s view that an application for an order by a master or judge requiring the provision of further information under CPR 18 would be an alternative open to the Claimant. The fresh evidence shows that this alternative procedure has indeed moved the Claimant’s case forward.

I would dismiss this appeal. I reach that conclusion with some reluctance, because in my view Mr Grayson has brought this litigation on himself. Since the swearing of the affidavit of 29 July 2020 he has engaged in months of stonewalling and bare denials. He was fortunate to obtain an order for costs in his favour from the judge. Subject to any submissions in writing lodged and served by 2 pm on Thursday 29 April 2021, I would make no order as to costs in this court.

I agree that the appeal should be dismissed for the reasons given by Bean LJ and I also agree with his provisional view about costs. I particularly support what he says about the judge’s second reason for refusing the application, and would only add this. The underlying complaint in this case is very troubling if it is true. However, the judge, when describing the case against Mr Grayson as “limited in scope”, did not refer to the most serious of the allegations, which concerned hacking into the Claimant’s bank account. This, and his observation about “the lengths to which they have gone in pursuing this matter”, may suggest that he did not entirely place the application in its wider context when assessing justice and convenience. However, that cannot invalidate his decision to refuse specific relief that was, even in the circumstances of the case, inappropriate.

I also agree that, for the reasons given by my Lord, Lord Justice Bean, this appeal should be dismissed. I also agree with his preliminary view on costs at [35]. On the face of it, all the time and money spent on this aspect of the dispute would have been saved if Mr Grayson had complied with the CPR and provided a proper answer to the original Part 18 request.