Zaza Okuashvili & Ors v Bidzina Ivanishvili & Ors

This is Mr Okuashvili’s application to adduce a new expert report from Professor Bowring and a new witness statement from Mr Okuashvili. The evidence has not been served in accordance with the case management timetable set by the Court for the preparation of this hearing.

The relevant criteria to take into account in deciding whether Mr Okuashvili should be permitted to rely on late evidence was set out in Denton v White [EWCA] Civ 906.

The first step is to consider the seriousness and significance of the breach. The breach in this case is a failure to serve Professor Bowring's report and Mr. Okuashvili's witness statement within the timescale which was set by the master for case management. The very latest that evidence should have been served is August 2024 for claim 2 and October 2024 for claim 1. In a case like this, where we are dealing with the question of whether or not service out of the jurisdiction should be set aside in claims which date back to 2022 and 2023, it seems to me there has been ample time to decide on and prepare the evidence which was going to be put before the court today. That has not happened, and there is now a proposed further expert's report and a further factual witness statement being produced for the first time in the two weeks leading up to this hearing.

So far as the seriousness and significance of the breach is concerned, there cannot be proper preparation by the Defendants for an application which involves the complicated issues which this application involves unless the parties comply with the timetable, serve their evidence in accordance with it and allow everyone to prepare appropriately for this hearing. This is a five-day hearing to deal with applications to set aside service on behalf of at least six separately represented parties in two different sets of proceedings.

The reason given for the default is completely unsatisfactory. The reason for the default is that there has been a change in representation, and somehow during the course of that change in representation evidence which it was intended to be prepared and served was not prepared and served. I do not consider that a satisfactory reason at all for a failure to comply with the court's directions as to the timetable for evidence.

Professor Bowring's report is said to be an updating report. Having looked at it, it seems to me to be only to a very limited extent an updating report. It takes the opportunity to duplicate and add matters which really could have been dealt with by the previous expert in the previous expert's report which was filed in October 2024.

So far as Mr. Okuashvili's witness statement is concerned, that raises a range of new factual assertions, for example, as to the personal risk to Mr. Okuashvili if he were to return to Georgia, the personal risk which he would be under, and his inability to protect himself or defend himself, if he returned to Georgia. These are assertions which I am told are contested and the lateness at which that evidence has been served is such that the defendants have not had an opportunity to respond. Their evidence in response was served in accordance with the timetable by the end of last year.

Taking all of these matters into account, I am not willing to permit the late filing of either of these items of further evidence, either Professor Bowring's report or Mr. Okuashvili's witness statement.