Rai v Bholowasia & Anor

This is an application made by the claimant in a libel action to strike out the defence on the basis of non-compliance with court orders and, in light of that non-compliance, on the basis that there is no reasonable prospect of the defence succeeding.

The underlying action relates to a publication in a Punjabi newspaper of an article suggesting that the claimant had stolen from a holy donation collection box at the Sikh Temple at which he is both a worshipper and a volunteer. He denies that allegation and regards it, unsurprisingly in those circumstances, as a serious and defamatory publication. The defendants accept the publication. They accept that the words relied on by the claimant were used, but raise a defence of justification and qualified privilege. In the defence a witness, Mr. Navpreet Singh, is named as having witnessed the alleged theft, and there is a suggestion that another person is also a witness but cannot be named for reasons of his personal safety.

The proceedings started some time ago, but in the early part of this year, as a result of the first defendant's ill health, the claimant agreed to a stay for a period of three months. On 2^nd July 2014 the defendants' solicitor, Ms. Parminder Mattoo of MTG Solicitors (who is the civil litigation partner with responsibility for the action) wrote to the claimant's solicitors, saying that they had taken their client's instructions following the end of the three-month stay that had been agreed, and confirming that he had advised them that he was fit enough to proceed with the litigation and fit enough to engage in and attend a trial in early 2014. In consequence, there was a hearing in front of Master Yoxall at which directions were given, including directions for the exchange of witness statements by 4.00 p.m. on 20^th October 2014, and a direction to attend a pre-trial review on 4^th December. Thereafter, on 31^st July, both sides' representatives attended a listing for trial appointment, and the trial was fixed for 19^th January 2015 for a period of three to five days. Confirmation of that listing fixture was given and that the pre-trial review would be heard on 4^th December with a time estimate of one hour. A letter to that effect was sent out to solicitors on 1^st August 2014.

On 20^th October, not having heard anything from the defendants or MTG Solicitors to suggest that there was any difficulty in relation to exchange on 20^th October, Mr. Sahota of Sahota Solicitors, who acts for the claimant, very properly, at 1544, emailed Parminder Mattoo to ask whether she was ready for exchange of witness statements. At that point, the claimant had ready and prepared - and this has been evidenced before me - 11 witness statements for trial. No answer was received to that email before the 1600 deadline, and at 1609 Mr. Sahota emailed Parminder Mattoo to ask whether she was ready for exchange. Again, no answer to that email was forthcoming. At 1629 that afternoon, Mr. Sahota wrote again, referring to the two emails to which he had had no response, and asking whether or not there would be exchange, and suggesting that strict automatic sanctions might follow. Finally, after that, Ms. Mattoo replied, in an email also timed at 1629 on 20^th October, saying that her client had had a short spell in hospital and as a consequence she had not been able to finalise the witness evidence, and asking for an extension of 14 days. That request was refused, but Mr. Sahota made clear that he was able and willing to exchange witness statements. In the next email, at 1648, the solicitor, Parminder Mattoo, said that the inability to finalise the witness evidence had been because of circumstances beyond her client's control. She suggested that she wanted an extension and would make an application if no extension was agreed.

On 21^st October Mr. Sahota responded by email saying that the failure to exchange without any proper explanation was regarded as unacceptable and prejudicial to the proper and efficient conduct of the action. He indicated that the claimant would not consent to an extension but required the defendant to make an application, and referred to the relief from sanctions application that would need to be supported by evidence.

Nothing was heard in response to that, and more than 14 days later, bearing in mind that Ms. Mattoo had initially asked for a 14-day extension, Mr. Sahota (who had not taken any steps to do anything about the failure by the defendants) wrote again on 10^th November, asking what was going on and seeking a full and urgent explanation. A response was received at 6.14 that afternoon from Ms. Mattoo, who said: "Further to your email, please note we have not yet managed to take our client's witness evidence due to his ill health. We have only just received our client's medical evidence and confirm we are in the process of making an application to court in respect of extending the time for exchange of statements. We will forward you a copy for your consent before lodging."

Mr. Sahota responded to that, saying that he would take instructions on the application to extend time once he received an application, or even a draft, but in the meantime inviting Ms. Mattoo to send the medical evidence she relied on, and reminding Ms. Mattoo that there was a PTR on 4^th December and that the trial was fixed for 19^th January 2015. The reply from Ms. Mattoo was to the effect that she would file an application notice with the court if the claimant agreed. On 13^th November Mr. Sahota said that any application would be opposed, and a counter application would be made to strike out the defence. I understand from Miss Kumar, who appears on behalf of the claimant today, that a draft application was served on her solicitors indicating that the extension of time that was sought would be until 28^th November, which is tomorrow.

No application was in fact made with the court for an extension of time, nor has any application been made for relief from sanctions, and indeed, although Ms. Mattoo and MTG Solicitors remain on record as acting for the defendants, the first defendant, Mr. Bholowasia, has attended in person today, assisted by a friend, but without assistance or representation from his solicitors.

The situation today therefore is that, despite the fact that there was a suggestion that witness statements would be served, first, within 14 days, and then within a further period, and then by tomorrow, no witness statements have been produced on the defendants' behalf, and Mr. Bholowasia has asked this court for a further extension of time of two to three weeks. That extension of time would jeopardise the trial date and would mean that the pre-trial review hearing could not take place on 4^th December.

The explanation that has been provided for the delay and the failure to comply with the court's order to exchange witness statements by 20^th October is based on the asserted ill health of Mr. Bholowasia. He tells me that he suffered an allergic reaction to medication at the end of September, which caused a skin reaction. He was given medication on 3^rd October, and attended hospital on 8^th October, but within two weeks was better, albeit that he has attended hospital again on 11^th November as a result of the acute arthritic condition he suffers from, and high blood pressure. He tells me that he is weak and has for the last two and a half years required a 24-hour carer. I have no doubt that that is correct.

Nevertheless, it has not prevented Mr. Bholowasia from participating in the activities of his newspaper and a significant public and social life. In his witness statement, served for the purposes of this application, the claimant, Mr. Rai, sets out, at paras.11 onwards, by reference to photographs published both in Pardes Weekly and on Facebook, the events and functions attended by Mr. Bholowasia in the critical period in which he should have been attending to his witness statement. Paragraphs 11 through to 27 set out those events, confirmed by photographs, and Mr. Bholowasia has accepted that he attended those events. They include a trip to Belgium, to Bruges, leaving on 20^th September by coach, a trip that lasted two days and a night. They include attending various dinners and ceremonies in the last week of September, and then functions during the period in October when Mr. Bholowasia tells me he was suffering from the skin condition and had to attend hospital. There is an election victory function on 11^th October. There is another function on 12^th October at which he was honoured for free services to the community. There is a function on 15^th October at which he attended a celebration of Diwali. There is a further function on 26^th October where he attended an event at which food is handed out to the community. There was a further function at the Dominion Arts and Library Centre to celebrate Diwali on 30^th October, and a dinner in honour of somebody, where he was photographed as a guest, on 5^th November. All of those events taking place during the critical period during which witness statements should have been prepared if court orders were prioritised. That is not to mention the trip on 31^st October to Blackpool and the Lake District - another one day and one night coach trip - attended by Mr. Bholowasia.

It is clear to me that the medical conditions that he undoubtedly suffers from have not prevented his attendance at social functions and public functions. Mr. Bholowasia sought to argue that he could not attend at his solicitors because they are in Wembley and he is in Southall. I am not persuaded about that by any means, given his ability to travel to Belgium and to the Lake District. I find it hard to believe that he cannot organise travel. But, in any event, he tells me that the solicitors normally come to his home. I find it very difficult in those circumstances to accept that the medical evidence that has been provided provides a proper explanation for his failure to produce a witness statement in these proceedings.

In any event, it seems to me that a critical witness statement, if his defence is to have any prospect of success, is the witness statement of the named witness who saw the alleged theft, and indeed the unnamed witness (if an unnamed witness is subsequently going to be relied on). There is no explanation provided as to why their witness statements have not been produced. Mr. Bholowasia at one point sought to suggest that his solicitors had been busy on other cases, but there is no evidence before me about the difficulties his solicitors have had, and indeed their correspondence asserts no such difficulty.

So the position therefore is, given that there has been a failure to comply with the order for exchange of witness statements on 20^th October, CPR 32.10 means that no oral evidence on the part of the defendants will be admitted at trial unless this court is prepared to grant an extension of time. The prohibition imposed by Rule 32.10 amounts to a sanction in terms of Rule 3.8 taking effect for failure to comply with a rule or court order. That means that the party seeking permission to rely on witness statements not served in accordance with the court's order must apply for relief from sanctions, as provided for by Rule 3.8 and Rule 3.9.

There is no application before this court by Mr. Bholowasia. Miss Kumar initially suggested that in those circumstances this court should refuse permission and go on to consider whether the defence should be struck out on the basis that there is no evidence to support it. However, it seems to me that in circumstances where a trial date and indeed the PTR can take place and be preserved, it is at least arguable that we have not got to the sanction stage because the rule in 32.10 has not had effect within the meaning of Rule 3.8. When that was put to Miss Kumar, she very realistically accepted that, provided any extension of time that is given will preserve the PTR date and the trial date, and is supported by an unless order, her client would not resist that approach.

It is a draconian step to prevent a party from defending proceedings where that party asserts that it has a defence to a claim, and in circumstances where there is, as yet, no harm beyond the wasted costs that have been caused by the failures on the part of the defendant, It seems to me that this court ought to give Mr. Bholowasia a last chance. I do take the view that the failures are serious and I am less than satisfied about the explanations that have been provided. But given that the trial date and the PTR can be preserved, the order that I am going to make is an unless order, and it will be to the effect that unless Mr. Bholowasia and the second defendant provide witness statements - all the witness statements - that they intend to rely on at this trial by four o'clock on Tuesday 2^nd December, this defence will be struck out and they will not be entitled to defend these proceedings. In addition - and I am going to make it a condition of their defending this action - they will pay the costs that I am going to order in a moment, the wasted costs, by a date two weeks from today, which I think takes us to 11^th December. So it will be a condition of the defendants defending these proceedings that they pay the wasted costs occasioned by their failure to comply with this order and the consequent application that the claimant has been forced to make, by four o'clock on 11^th December.

Turning to those costs, a costs schedule has been served. Miss Kumar seeks costs on an indemnity basis. The costs are in the sum of £7,550.60. I have little doubt that those costs have been incurred, and it seems to me that the claimant is entitled to costs on an indemnity basis, given the behaviour of the defendants. In assessing costs on an indemnity basis, I am bound to have regard to whether costs have been unreasonably incurred or are unreasonable in amount, having regard to the conduct of the parties, the importance of the matter in issue, the complexity, the time spent and the work that has been done. Having regard to all of those matters, it seems to me that the number of hours spent, given the witness statements that have been produced, and in particular the witness statement of Mr. Rai, who has carefully collated material to counter the suggestion that illness or ill health prevented the first defendant from complying with court orders, has been reasonably incurred and is reasonable in amount. In those circumstances, the order I make is the order sought, which is for £7,550.60, which is to be paid by 11^th December at four o'clock, as a condition of defending these proceedings.