Liverpool Victoria Insurance Company Ltd v Khan & Ors

On 21 June 2016 and 14 October 2016 HHJ Walden-Smith (sitting as a Judge of the High Court) variously granted the Claimant permission to bring contempt proceedings against the Defendants on a total of 33 Grounds (B1 - B32 & B34) – each alleging interference with the administration of justice.

The case was listed before me on 29 November 2017 – for determination of the Claimant’s Application Notice, dated 7 November 2017, to add seven further Grounds alleging interference with the administration of justice (C1-C7) against the 1^st Defendant, and associated applications, and thereafter for the Final Hearing (which had long been fixed – with a time estimate of six days).

The Claimant’s principal application was opposed. In addition, and without formal application or supporting evidence, the 2^nd Defendant made an application to strike out. The 3^rd Defendant applied to be tried separately, and immediately.

In the result, I concluded that:

Accordingly, along with various case management directions, I ordered that:

I reserved the reasons for my decisions. Before summarising them, it is necessary to outline (at some length) the background, and to summarise the developments after permission was granted, the seven further Grounds, and the various arguments advanced at the hearing on 29 November 2017.

The 1^st Defendant (who founded the law firm of Taylor Knight and Wolff in Leeds in 2011) was in practise as a solicitor specialising in claimant personal injury work – which he went about sourcing by offering to pay intermediaries for introductions; the 2^nd Defendant ran a claim management business called On Time Claims, which was based in High Wycombe; the 3^rd Defendant, a doctor, was a General Practitioner, based in Chessington in Surrey, and also had a medico-legal practice; and the 4th Defendant (who completed his law degree in June 2010, and his legal practice course in June 2012) was employed by Taylor Knight and Wolff as a ‘paralegal’ from September 2012.

The Claimant’s case on the 33 Grounds upon which permission was granted by HHJ Walden-Smith arises from personal injury litigation in respect of a road traffic accident on 3 December 2011. The accident involved Mudassar Iqbal (a taxi driver), and Nicky Versloot (whose insurer is now the Claimant in these proceedings).

It is alleged that, after the accident, Mr Iqbal sought assistance from On Time Claims – visiting their office in High Wycombe on 17 January 2012, where he was dealt with by the 2^nd Defendant; that on 23 January 2012 the 2^nd Defendant passed on Mr Iqbal’s case to the 1^st Defendant (for paid a fee for the introduction); and that the 1^st Defendant then instructed Med-Admin Limited (a medico-legal agency run by his aunt) to arrange for a medical report to be obtained on Mr Iqbal.

Med-Admin Limited arranged, via the 3^rd Defendant’s domain UK-Doctors.com, for the 3^rd Defendant to prepare the report. He saw Mr Iqbal on 17 February 2012, and wrote a report (“the original report”) on that date – in which he indicated that Mr Iqbal had fully recovered from his injuries within a week, and that his examination was entirely normal. The Report was duly forwarded to the 1^st Defendant.

It is alleged that, in order to falsely boost the value of the claim, and thus to enable the 1^st Defendant’s firm to obtain a significant costs award via the successful pursuit of it, on 24 February 2012 the 1^st Defendant instigated a revision of the original report via an email to Med-Admin Limited – asserting, amongst other things, that Mr Iqbal had ongoing moderate to severe pain in his shoulders and neck, mild to moderate pain in his wrists, and pain in his lower back, with a likely recovery period of 6-8 months. Mr Iqbal, who is a witness for the now Claimant in these proceedings, denies ever making any such assertions to the 1^st Defendant. He asserts that the original report was broadly accurate – albeit that it still overstated the position somewhat.

Nevertheless, and without the 3^rd Defendant seeing Mr Iqbal again, a revised version of the report (“the revised report”), also dated 17 February 2012, was created on 24 February 2012 by (or on behalf of) the 3^rd Defendant. The revised report made no reference to the original report; did not explain how it differed from the original report; and nor did it give reasons for the changes. It is alleged to have contained the following false statements by the 3^rd Defendant in relation to Mr Iqbal:

Proceedings were begun on behalf of Mr Iqbal. The 3^rd Defendant’s revised report was provided to the now Claimant’s solicitors, not the original report. The now Claimant’s solicitors were also provided with a witness statement purporting to be by Mr Iqbal, and to have been signed by him on 23 April 2013. Further evidence in relation to the witness statement emerged after the permission hearings – see [53] below.

In due course, the trial of Mr Iqbal’s personal injury claim was fixed for hearing on 14 August 2013 in the Slough County Court. The 4^th Defendant was responsible for the preparation of the trial bundle, which he eventually emailed to the now Claimant’s solicitors in the early afternoon of 12 August 2013. However, clearly by mistake, the 4^th Defendant served the 3^rd Defendant’s original report, not the revised report, in the trial bundle.

It is alleged that, also on 12 August 2013, the 4^th Defendant emailed the 3^rd Defendant’s revised report to Mr Iqbal – who states that that was the first time that he had seen that version. Mr Iqbal asserts that, thereafter, the 4^th Defendant telephoned him and said that he (Mr Iqbal) needed to memorise and to “follow” the revised report. The case was duly listed for trial before District Judge Devlin on 14 August 2013. Mr Iqbal asserts that, whilst at Court on that date, he spoke with the 4^th Defendant, who told him that he needed to tell the judge that he had recovered after 6-8 months.

Against that background, Ground B23 alleges against the 4^th Defendant that “...on or about 14 August 2013 he advised and/or instructed the Claimant to lie on oath at his civil trial and give false evidence that his symptoms had persisted for 6-8 months when the truth was that they had settled within a few days.”

It is further alleged (though not the subject of any Ground) that, at court on 14 August 2013, the 4^th Defendant falsely informed counsel instructed on behalf of Mr Iqbal that the original report served in the trial bundle had been created in error; that the revised report was the correct one; and that the now Claimant’s solicitors had been so informed.

At all events, at that hearing District Judge Devlin made an Order requiring:

On Friday 16 August 2013, the now Claimant’s solicitors sent a letter to the 3^rd Defendant (addressed to his NHS practice) explaining the position, and saying that they were intending to send an enquiry agent to speak with him, to find out what had been happening, and to take a statement from him.

There was telephone contact between the enquiry agent, Mr Heywood (of G4S Ltd) and the 3^rd Defendant on 19 August 2013, and they agreed to meet the following day. Mr Heywood duly attended on 20 August 2013, when the 3^rd Defendant made a witness statement in which he asserted that the correct version of the report was the original report (i.e. that Mr Iqbal’s symptoms had resolved within a week of the accident), and that he had looked at the revised report – which contained poor grammar and the incorrect use of capital letters. Ground B34 alleges that the following passage in the 3^rd Defendant’s witness statement was untrue, namely that: “This report has been altered whilst in the custody of Med-Admin and has not been altered by myself, and I have not given anyone permission to alter this report.” The now Claimant contrasts the content of this witness statement with the content and ramifications of the 3^rd Defendant’s later statement dated 22 October 2013 (see [23] – [26] below), and of his affidavits dated 31 January 2016 (see [34] – [37] below) and 19 May 2016 (see [38] below).

On 28 August 2013, the 1^st Defendant made a witness statement in response to the Order made by District Judge Devlin on 14 August 2013. It is alleged to have contained the following false statements:

It is alleged that on 5 September 2013 the now Claimant’s solicitor, Mr McCann, spoke with the 3^rd Defendant, who said that he had spoken with Mr Iqbal’s solicitor, and had realised that he should not have made his witness statement on 20 August 2013 – albeit that he asserted that it was true. He had, he nevertheless said, now taken time to read the whole chronology and the original examination of Mr Iqbal had only dealt with his initial symptoms, not his ongoing symptoms, and that was why he had amended the original report to show the ongoing position. It is alleged that the solicitor tried to explain that such an explanation was in total contradiction to the witness statement, but that the 3^rd Defendant would not accept that.

On 22 October 2013, the 3^rd Defendant made a further statement (which included a CPR Part 35 declaration) to the effect that, having since obtained the amendment request that had been sent to him on 22 February 2012, and having looked into the matter in greater detail, the original report had been an error on his behalf as it related only to Mr Iqbal’s acute symptoms, and the revised report (which he recalled doing himself) was the correct one. This further statement, which is in stark contrast to the 3^rd Defendant’s witness statement made on 20 August 2013 (see [20] above), is alleged to have contained the following false statements:

In due course the 3^rd Defendant’s statement dated 22 October 2013 was provided to the now Claimant’s solicitors, together with an electronic version of a document entitled ‘Amendment Instructions (4).pdf’ which was said to be the amendment request that had been sent to the 3^rd Defendant on 22 February 2012. Examination of the electronic document on behalf of the now Claimant is alleged to have shown that:

In consequence, the now Claimant’s solicitors made two applications (which were to be heard on 5 March 2014) for inspection facilities to ascertain the provenance of the letter.

On 4 March 2014 the 1^st Defendant made a further statement, which was served at court the following day, in which he asserted that in order to comply with District Judge Devlin’s Order, the 3^rd Defendant had needed the amendment instructions; that he (the 1^st Defendant) only had a hard copy of the amendment instructions, and so (as his firm’s scanner was broken) to forward them he had typed them into a Microsoft Word file using a template from other correspondence that he had completed earlier that day; and that he had then converted the file into PDF and had then forwarded it to the 3^rd Defendant. The now Claimant asserts that the 1^st Defendant could simply have used his firm’s fax to email system, which was demonstrably working, and which would have avoided any need to copy type, and that this further statement contained the following false statement: “I confirm that the typed instructions were the same as the hard copy on the file” (Ground B4).

The applications for inspection facilities were adjourned to be heard before the Designated Civil Judge – at a hearing before whom, on 15 August 2014, Mr Iqbal served a Notice of Discontinuance. However, in response, the now Claimant made an application to set aside the Notice of Discontinuance and for a wasted costs order. The matter was adjourned until 9 February 2015.

In the meanwhile, on its face, on 11 November 2014 the 2^nd Defendant made a witness statement – which was corroborative of the 1^st Defendant’s later account of how and in what circumstances the revised report came to be adopted by Mr Iqbal - and which, it is alleged, contained the following false statements:

In a witness statement dated 21 January 2015, the 1^st Defendant produced a number of exhibits (KAK 1-6) – including a purported file note of a conversation with Mr Iqbal on 22 February 2012; the purported letter to the 3^rd Defendant dated 22 February 2012 requesting amendment of the original report; a purported file note of a telephone conversation with Mr Iqbal on 24 February 2012; a copy of an email sent to him (the 1^st Defendant) at 15.28 on 24 February 2012 attaching the revised report; and a copy, on the face of it, of the 2^nd Defendant’s witness statement dated 11 November 2014 (see immediately above). The 1^st Defendant asserted that, by February 2012, experience had shown that the best way to communicate with Med-Admin was by post addressed to the General Manager, as emails tended to be dealt with by a myriad of office workers and were occasionally ignored or lost in the system. This witness statement is alleged to have contained the following false statements by the 1^st Defendant:

In addition, in connection with the same witness statement, it is alleged that the 1^st Defendant:

On 9 February 2015, the original case was listed before HHJ Tolson QC, when it was confirmed that Taylor Knight & Wolff were no longer representing Mr Iqbal (albeit that they remained on the Court record). An Order was made giving various directions – including that Taylor Knight & Wolff, Med-Admin Limited and the 3^rd Defendant disclose incoming email concerning the amendment of the original report; outgoing email sending the revised report; and any other document or email which was related to or connected with the amendment of the original report. The judge further directed that inspection be completed on 30 March 2015, and that all copies of electronic documents were to be supplied in their native format (preserving metadata). It is alleged that the 3^rd Defendant conspicuously failed to comply with that Order.

On 21 July 2015 Mr Iqbal wrote to Taylor, Knight & Wolff asking for a copy of his file of papers. In consequence, the 4^th Defendant telephoned him on 4 August 2015. The now Claimant underlines that, in his file note in relation to the call, the 4^th Defendant recorded, amongst other things, that he had advised Mr Iqbal that it was not possible for him (Mr Iqbal) to be charged as “…the issue of the medical report has nothing to do with him……SA advised….that we are still on the Court record as acting for MI therefore the Defendant and their representatives should not be in contact with MI.”

Nevertheless, thereafter Mr Iqbal indicated that he was willing to talk to enquiry agents instructed by the now Claimant’s solicitors. In the result, on 29 September 2015, he swore an affidavit in which he asserted, amongst other things, that:

On 31 January 2016, the 3^rd Defendant swore an affidavit in which he asserted, amongst other things, that he had lost his handwritten notes relating to Mr Iqbal (albeit that the now Claimant asserts that, in an email dated 3 March 2015, the 3^rd Defendant’s secretary had indicated that the 3^rd Defendant did not make handwritten notes); and that, when making his statement to Mr Heywood on 20 August 2013, he had not been clear what Mr Heywood had been talking about; that he had not had the opportunity to go back to look into what the case involved because of the urgency that Mr Heywood had expressed; nor had he had the opportunity to consult his notes and to check how the reports were generated; and nor had he then remembered the amendments being made. Therefore, he had thought at the time that what he was saying in the statement was correct.

Further, in the affidavit dated 31 January 2016, the 3^rd Defendant produced a chain of emails, sent between 12.47 and 14.50 on 24 February 2012, in relation to the revised report, as follows:

In the same affidavit, the 3^rd Defendant asserted that he had asked Mr Jardella to make the necessary amendments and to send the draft report to him to check before it was returned to Med-Admin. However, the 3^rd Defendant further asserted, Mr Jardella had not sent the draft report back to him to check, but had forwarded it to Med-Admin after amending it. As mentioned above, an email (produced by the 1^st Defendant in his statement dated 21 January 2015 -see [29] above) shows that the revised report was emailed to him at 15.28 on 24 February 2012. The content of the revised report is alleged by the now Claimant to be broadly consistent with the request made in the 12.47 email, but to be inconsistent with the alleged letter dated 22 February 2012 from the 1^st Defendant requesting the revision, and with his alleged file note of that date (both of which refer to Mr Iqbal’s severe / acute symptoms resolving after 1-2 weeks) and with the content of the 3^rd Defendant’s statement dated 22 October 2013.

It is alleged that, in his 31 January 2016 affidavit, the 3^rd Defendant also made the following false statement: “When I pressed his shoulders I noted tightness and tenderness” (Ground B32).

In a further affidavit, sworn on 19 May 2016, the 3^rd Defendant asserted that, as a result of a specialist electronic investigation of his computer system, he now believed that he had opened and saved the revised report on the night of 19 August 2013 (in preparation for his meeting with Mr Heywood the following day), and that during that process the document (which was otherwise the same as the revised report dated 17 February 2013) had been auto-changed in certain respects by a programme on the computer and dated 19 August 2013.

The first permission hearing took place before HHJ Walden-Smith on 24 May 2016. It did not proceed against the 1^st and 4^th Defendants on that date as neither was ready, and the judge allowed the adjournment that each sought. The hearing did proceed in relation to the absent 2^nd Defendant (who the judge was satisfied had been served, but who had failed to take any active part), and in relation to the 3^rd Defendant (who was represented and anxious to proceed).

As touched on above, HHJ Walden-Smith gave judgment in relation to the 2^nd and 3^rd Defendants on 21 June 2016. At [7] - [27] she analysed the evidence in relation to the 3^rd Defendant. At [28] - [39] she set out the relevant law and the issues for consideration. At [40] - [47] she considered the specific allegations against the 3^rd Defendant – concluding (in chronological order) that there was strong prima facie evidence that his revised report dated February 2013 was false in the respects alleged in Grounds B24-B31, and that he knew them to be false; that there was strong prima facie evidence that his witness statement dated 20 August 2013 was false in the respect alleged in Ground B34, and that he knew it to be false; that there was a strong prima facie case that his statement dated 22 October 2013 was false in the respects alleged in Grounds B17-22, and that he knew them to be false; and that there was strong prima facie evidence that his affidavit dated 31 January 2016 was false in the respect alleged in Ground B32, and that he knew it to be false (albeit that, in the judgment, that Ground was said to relate to a statement in the revised report). The judge concluded, however, that she was not satisfied that there was a good prima facie case against the 3^rd Defendant on three other Grounds – B33, 35 & 36. Finally, as to the 3^rd Defendant, at [48] & [49] the judge concluded that the interests of justice clearly required the proceedings to be allowed to continue, that such was also in accordance with the overriding objective and therefore (given her findings with respect to the strong prima facie evidence against the 3^rd Defendant) permission was granted as against him in relation to Grounds B17-22, 24-32, and 34.

As to the 2nd Defendant, at [50] - [53] the judge recognised that the case against him on Grounds B13-16 in respect of his witness statement dated 11 November 2014 was heavily dependent on the evidence of Mr Iqbal, but concluded that Mr Iqbal’s evidence was consistent with other evidence that was available before the court; that there was nothing in his evidence that had the appearance of embellishment; and that no reason had been put forward as to why he was saying what he was saying unless it was the truth. Accordingly, she was satisfied that there was a strong prima facie case against the 2^nd Defendant, and that it was in the interests of justice, and in accordance with the overriding objective, that proceedings be brought against him. Therefore, she also granted permission on Grounds B13-B16.

The permission hearing in relation to the 1^st and 4^th Defendants took place before HHJ Walden-Smith on 27 July 2016. As also touched on above, judgment was given on 14 October 2016. At [1] – [18] of her judgment the judge set out the background and the law. At [19] – [36] she considered the Grounds and arguments in relation to the 1^st Defendant, including the forceful attack made by him on Mr Iqbal’s credibility, and his contention that the amendment instruction letter dated 22 February 2013 was genuine. At [30] – [36] the judge concluded that there was a strong prima facie case that the instruction letter was not created until August 2013 (i.e. at the time that the 1^st Defendant was in the process of writing his own witness statement in response to the Order of District Judge Devlin); that the instructions to amend the original report came via the email dated 24 February 2013 (which also gave support to Mr Iqbal’s account – albeit that he had persisted in the false account of his injuries); that (in chronological order) there was a strong prima facie case against the 1^st Defendant in relation to his witness statement dated 28 August 2013 on Grounds B1-B3, in relation to his witness statement dated 4 March 2014 on Ground B4, and in relation to his witness statement dated 21 January 2015 on Grounds B5-B12; and that it was in both the interests of justice and in accordance with the overriding objective that permission be granted on those Grounds.

At [37] – [48] of her judgment the judge considered Ground B23 and the argument in relation to the 4^th Defendant – who relied upon the fact that Mr Iqbal had accepted that he had signed a witness statement that he had been sent in the post (which had included an assertion that he had injuries from the accident which had cleared up approximately 8 months after the accident – albeit that he had subsequently said that he had not read that statement). The judge opined that it was significant that, at the hearing on 14 August 2014, the 4^th Defendant’s instructions to counsel had shown that he had a much greater knowledge of what was happening than he now asserted. Against that background, the judge further opined that, while Mr Iqbal may have perpetuated a lie, he had an explanation for doing so, and his contention that the 4^th Defendant was more heavily involved in the preparation for trial was supported by the 4^th Defendant’s instructions to counsel. Therefore, she concluded, there was a good prima facie case on Ground B23 against the 4^th Defendant (who was trying to distance himself from the true level of his engagement); and that it was both in the public interest and in accordance with the overriding objective to allow committal proceedings to be brought on that Ground. Finally, at [49], the judge concluded that the allegations against the 1^st and 4^th Defendants were fundamental to the manner in which civil justice is conducted.

On 2 March 2017 HHJ Walden-Smith ordered that, at the committal hearing, the Claimant could rely upon the evidence already served in support of the application for permission, and that the Claimant should file and serve any additional evidence upon which it wished to rely by 4pm on 3 April 2017, and that the Defendants should file and serve any evidence that they intended to rely upon by 4pm on 2 May 2017. The Claimant duly filed and served its additional evidence (relevant to the Grounds upon which permission had been given) in time.

In the meanwhile, on 12 April 2017, the 2^nd Defendant appeared before O’Farrell J for the Final Hearing of a contempt application brought by the insurers EUI in connection with a false claim made by the 2^nd Defendant in relation to an accident that was said to have occurred in June 2012, and in relation to which he was represented by the now 1^st Defendant – see [2017] EWHC 1421 (QB). The 2^nd Defendant, who admitted contempt in that case, sought the adjournment of sentence until the completion of the instant proceedings – indicating that his case in the instant proceedings was that he did not sign the statement (dated 11 November 2014) in his name, but could not positively say that the now 1^st Defendant had done so. The adjournment was refused, and the 2^nd Defendant was sentenced to 9 months’ imprisonment.

On 19 April 2017 the now Claimant’s solicitors wrote to the 2^nd Defendant’s solicitors indicating that they were aware of the “concessions” that the 2^nd Defendant had made at the hearing before O’Farrell J on 12 April 2017 (above), and reminding them that the 2^nd Defendant had to provide details of his case in full by 2 May 2017.

On 24 April 2017 the Final Hearing in this case was fixed for the end of November 2017. Neither the 1^st nor the 2^nd Defendant filed or served any evidence by 2 May 2017.

On 16 May 2017 the now Claimant’s solicitor wrote to the 2^nd Defendant’s solicitors again, enclosing a copy of their letter of 19 April 2017 and concluding: “Your client now has the opportunity to provide such evidence and in the circumstances, we await to receive that evidence. If your client is not going to provide such evidence please confirm the position.” Nothing appears to have been received in response.

The 1^st Defendant swore an affidavit on 7 August 2017, in which (the now Claimant alleges) he effectively admitted having attempted to steer Mr Iqbal to say that the original report was incorrect; stated (patently untruthfully it is said) that the pain and symptoms that Mr Iqbal had complained of to his GP on three separate occasions was the same that he had advised the 1^st Defendant of in his amendment instructions on 22 February 2012; and asserted that it did not occur to him to check whether the 3^rd Defendant’s revised report was CPR compliant. At all events, on 22 September 2017 the 1^st Defendant made a successful application for relief from sanctions, which will enable him to deploy his evidence at the Final Hearing.

On 4 October 2017 the 4^th Defendant swore an affidavit in which (as the now Claimant underlines) he accepted that, after his telephone conversation with Mr Iqbal on 4 August 2015 (see [32] above) he had instructed an enquiry agent to attend at Mr Iqbal’s house – and that the agent attended on 24 & 25 November 2015.

On 19 October 2017, the 2^nd Defendant served an application bundle on the now Claimant which, finally, set out his position. Reliance was placed by him on a report (dated 22 September 2017) from a handwriting expert, Mrs Allan, whose conclusion (that there was moderately strong evidence to support the proposition that someone other than him wrote the disputed signature in imitation of his style) supported his assertion that he had not signed the witness statement bearing his name dated 11 November 2014 – albeit that Mrs Allan also concluded that the evidence was not conclusive, and that the possibility that he did write the signature could by no means be excluded.

Three days later, on 23 October 2017, the 2^nd Defendant served a witness statement (dated that day) in which he denied having signed the witness statement dated 11 November 2014 bearing his name. Rather, he asserted that in November 2014 the 1^st Defendant had contacted him stating that there was a danger that the courts could strike out the case because Mr Iqbal had stopped communicating with his solicitors, and that he had drafted a statement for him (the 2^nd Defendant) which he was sending over for him to read and sign. The 2^nd Defendant asserted that he received that statement at 18.10 on 7 November 2014 via email, but that he had ignored it as the contents were false. In particular, he asserted that he was not aware of any medical report; that Mr Iqbal had not attended his office on 22 February 2013 (when he had been abroad on holiday and had only returned via Luton Airport at 21.15); that nor had Mr Iqbal brought a copy of any medical report; that nor had he been aware that Mr Iqbal had received a revised report; that nor did either the 1^st Defendant or Mr Iqbal attend his office on 25 February 2012; and that nor did he see any revised report. He had not, he said, replied to the 1^st Defendant’s email, nor had he signed the statement at any point or printed his name or written the date. Further, he said, examination of the properties of the draft statement showed both that the 1^st Defendant was the author, and that it had last been modified by him. He asserted that the 1^st Defendant had tried to contact him again thereafter on numerous occasions, but that he had ignored his calls.

On 25 October 2017, before Haddon-Cave J, the now Claimant consented to an application by the 2^nd Defendant to introduce the above-mentioned evidence. In the consent order, all parties were given permission to serve handwriting evidence by 15 November 2017. However, it is said that it was recognised that the 1^st Defendant’s handwriting evidence had emerged late, and that the direction did not debar any party from making any application if evidence was served after 15 November 2017.

ln consequence of the 2nd Defendant’s evidence, on 31 October 2017 the now Claimant’s solicitor invited Mr Iqbal to consider more carefully the signatures on the witness statement in his name dated 23 April 2013.

Mr Iqbal searched through his stored emails, and found two from the 1^st Defendant dated 26 April 2013, timed as follows:

In consequence, Mr Iqbal recalled that, in the period between the two emails, he had spoken with the 1^st Defendant on the telephone and had given him the information sought in the first email. Mr Iqbal also carefully considered the signatures on the statement dated 23 April 2013, and having done so had concluded that he did not believe that he had written them – for example, the ‘M’ was not how he would sign it.

In the result, the now Claimant variously alleges that:

As indicated above, the Claimant’s Application Notice was dated 7 November 2017. Having taken instructions, on 8 November 2017 the Claimant’s solicitor instructed an expert, Ellen Radley, to examine the witness statement dated 23 April 2013 in Mr Iqbal’s name.

In the meanwhile, the 1^st Defendant had instructed another expert, Kathryn Barr, to examine the statement dated 11 November 2014 in the name of the 2^nd Defendant. In a report dated 14 November 2017 she concluded that: “The limitations of the specimens are such that I cannot offer any strong opinions. Nevertheless, the differences are such that, in my opinion, there is limited evidence that Shafiq Sultan did not write the questioned signature. By that I mean that, while I cannot exclude the possibility that the signature was written by Shafiq Sultan, on the balance of probabilities, it is more likely that some other person produced the signature (making little or no attempt to copy the genuine signature design).”

In her report (which was served immediately on receipt on 17 November 2017) Mrs Radley concluded that, on the documents before her, the five questioned signatures on the statement dated 23 April 20 in Mr Iqbal’s name were not his normal and natural writings, and that there was strong evidence to support the proposition that the questioned signatures were simulations.

On 22 November 2017 Mr Iqbal swore an affidavit dealing with his further evidence. It was served the following day.

The seven additional Grounds on which the application for permission was made against the 1^st Defendant, the first five of which related to the witness statement dated 11 November 2014 in the name of the 2^nd Defendant, were as follows:

The application was supported by witness statements, dated 7, 22 & 28 November 2017, by the Claimant’s solicitor, Mr McCann. In his statement dated 22 November 2017, Mr McCann argued that there was now a strong prima facie case of forgery; that permission should be granted on Grounds C1-C7; and that the Claimant should be permitted to rely on the evidence of Mrs Radley and the further evidence of Mr Iqbal. In his last statement Mr McCann underlined that the Claimant had not been on notice of any problem with signatures until the 2^nd Defendant had belatedly shown his hand. Accordingly, Mr McCann’s primary submission was that the Claimant could not be criticised for the late introduction of its evidence in relation to signatures. In particular, he submitted, the Claimant could not, with reasonable diligence, have been expected to obtain the evidence for service in compliance with the Court’s timetabling, it was not a relief from sanctions situation, and the court could avail itself of its more general power to extend time without the need to consider the Denton criteria, and even if the Denton criteria applied, the Claimant’s application should be allowed.

Mr McCann further argued, by analogy with the post judgment cases Ladd v Marshall [1954] 1 WLR 1489 and Singh & others v Habib & AIG [2011] EWCA Civ 599, that the law recognises both the need for parties to bring their cases forward expeditiously and consistent with Court directions; that it would be an affront to justice for a Court to be asked to turn a blind eye to matters that are important to the subject matter in dispute, even if they emerge late; and that the fresh evidence test (i.e. that it could not have been obtained previously with reasonable diligence for use at the trial, that it would probably have an important influence on the outcome of the case, and that is apparently credible) was important because it defined the interface between the two principles.

Nevertheless, Mr McCann argued, if an application for relief from sanctions was required in relation to the service of the evidence of Mrs Radley, the delay of two days was not, viewed in the context in which it arose, significant or serious, and had in any event to be seen against the background that the disclosure of the 2nd Defendant’s evidence was more than 6 months late. Secondly, there was a good reason for the breach, as the time period was too short for the additional steps that the Claimant had to take. Thirdly, given the likely landscape of the litigation, nothing was to be gained by refusing the Claimant permission to deploy.

On behalf of the Claimant, Mr Higgins relied on the content of Mr McCann’s witness statements in support of the application to add Grounds etc, and variously argued that:

In his Opening Note on behalf of the 1^st Defendant, Mr Browne QC emphasised that the 1^st Defendant wholly denied each of the allegations set out in proposed Grounds C1 – C7, and explained that the 1^st Defendant opposed the Claimant’s application for permission in relation to those Grounds for the following reasons:

In his oral submissions, Mr Browne underlined that:

Against that background, and the content of Mr Iqbal’s affidavit and of the exhibits produced in it, Mr Browne submitted that:

As to Grounds C1 – C6, Mr Browne submitted that, if it was the Claimant’s case that it was the 1^st Defendant who had signed the 2^nd Defendant’s statement, then an adjournment would be required to enable the 1^st Defendant’s handwriting expert to obtain proper handwriting samples and to report in the light of them.

Mr Browne underlined that, before permission could be granted, strong prima facie evidence had to be shown, and submitted that one would therefore expect expert handwriting evidence to the criminal standard that the signature was not that of the purported author, but was made by another – yet there was no such evidence, or anything close to it. He then re-iterated the points made in his Opening Note, and also questioned why, after the service of the Claimant’s evidence in early March 2016, the 2^nd Defendant had not immediately said that he was not in the country on 25 February 2012, and had not signed the witness statement in his name dated 11 November 2014, rather than wait until over a year later. It would be wholly unsafe to grant permission in relation to Grounds C1 – C6.

In his Amended Skeleton submissions on behalf of the 2^nd Defendant, Mr Naik argued that:

In his oral submissions, Mr Naik re-iterated aspects of those arguments, as well as submitting, amongst other things, that there was no evidence that the 2^nd Defendant had caused anything to be made; that HHJ Walden-Smith had proceeded upon the basis that it was him who had signed the statement; and that it was relevant only to credit that in the EUI case the 2^nd Defendant had adopted documents drafted by the now 1^st Defendant as his own.

On behalf of the 3^rd Defendant, Mr Goldberg QC expressed concern about costs, and (given the issues that had emerged) the adequacy of the 6-day time estimate. He recognised that an allegation of forgery against a solicitor had to be grasped, and that the court would have to decide, one way or another, as to whether there had to be an adjournment. But, he submitted, the case against the 3^rd Defendant was in a different department and self-contained, and so (even if an adjournment was ordered in relation to others) the case should continue against the 3^rd Defendant alone.

On behalf of the 4^th Defendant, Mr King accepted that the four Defendants should be tried together, but stressed that he did not wish for the case to be adjourned.

In reply, as to the Claimant’s application to adduce further evidence, Mr Higgins submitted that reliance on Mr Iqbal was limited to matters that were different to his first affidavit which had been served in time, and was therefore consistent with the practice, under CPR 32.10, of enabling alteration. It was wrong to look at it, via Denton, as some sort of breach requiring relief. As to Mrs Radley’s expert evidence, whilst it had been served 2 days after the closing date set by Haddon-Cave J, and as Mr McCann had argued in his statement dated 22 November 2017, Mr Higgins submitted that a delay of two days did not, in the particular circumstances of this case, amount to a serious and significant breach, there was a good reason for the breach, and it was in the overall interests of justice that the evidence be adduced.

Mr Higgins also relied upon Mr McCann’s submissions in relation to Ladd v Marshall. As to reasonable diligence, prior to April 2017 there had been nothing that reasonably triggered a need to investigate the relevant signatures. What the 2^nd Defendant had asserted to O’Farrell J did not reasonably trigger a need to investigate either. Rather, against the background that insurers did not have unlimited funds, it had been appropriate for the Claimant to enquire, in the terms of the letters sent in April and May 2017, as to whether the 2^nd Defendant was going put forward a defence in the instant proceedings and, if so, what it was going to be. It was only when the 2^nd Defendant had finally served his evidence that further investigation had been reasonably required, and it had been pursued with reasonable diligence.

Notwithstanding the necessary length of the outline (above) of the background, it seemed to me that the Claimant’s case on Grounds B1 - B32 & B34 as advanced before HHJ Walden-Smith was relatively straightforward, namely that:

There was no dispute that, in granting permission in relation to Grounds B1-B32 & B34, HHJ Walden-Smith had set out and applied the correct legal tests.

I carefully considered, and ultimately agreed with, the reasoning and conclusions of HHJ Walden- Smith in relation to those Grounds – in particular as to the prima facie credibility of Mr Iqbal’s evidence (notwithstanding the matters and arguments relied upon to his discredit) in view of the support provided to it by other aspects of the evidence, and the application of common sense, the significance of the alleged cover up and its changing nature, and (when all relevant evidence was taken into account) as to the strength of the prima facie case against each of the Defendants on those Grounds.

I also concluded that, in accordance with HHJ Walden-Smith’s Order, the Claimant had served its evidence in relation to those Grounds by 4pm on 3 April 2017.

Equally, on all the evidence, and up to that point, I could see no lack of reasonable diligence in not asking Mr Iqbal to double check his acceptance that he had signed the statement dated 23 April 2013 (albeit that there was evidence that undermined the validity of that date), nor to instruct a handwriting expert – whether in relation to that statement, or the statement in the name of the 2^nd Defendant dated 11 November 2014.

Nor, in my view, was there a lack of reasonable diligence after the claim made on behalf of the 2nd Defendant, at the hearing before O’Farrell J on 12 April 2017, that the signature on the statement in his name dated 11 November 2014 was not his. Rather it was, in my view, reasonable for the Claimant to first see whether the claim was going to be pursued in the instant proceedings by compliance with HHJ Walden-Smith’s Order as to Defence service by 4pm on 2 May 2017. Accordingly, it was, in my view, reasonable for the Claimant’s solicitor to pursue the matter in correspondence in the terms of the letters that were sent to the 2^nd Defendant’s solicitors in April and May 2017 – rather than immediately embarking on a potential wild goose chase.

That, in my view, remained the position until 19-23 October 2017 and the eventual service, long out of time, by the 2^nd Defendant of the evidence upon which he now seeks to rely - in particular, that of the handwriting expert Mrs Allan, which supports his case as to the signature on the statement dated 11 November 2014 in his name.

That did trigger the need for the Claimant to act with reasonable diligence in response. In the result, and albeit that it might have moved a little faster, I concluded that, in all the circumstances as outlined above, the Claimant had done so in relation to its response to the 2^nd Defendant’s evidence, and also as to the further enquiries of Mr Iqbal and the obtaining of Mrs Radley’s expert evidence.

To any extent, which I doubted, that reliance on the evidence of Mrs Radley and Mr Iqbal required relief from sanctions, it seemed to me that, in each instance, the arguments advanced (whether directly or implicitly) on behalf of the Claimant had considerable force, and that the answer to each of the Denton questions was favourable to the Claimant – such that relief should be granted.

In granting permission in relation to the proposed Grounds C1 – C7, and taking them in chronological Order, I concluded that:

As to the 2^nd Defendant’s application to strike out, I concluded that (quite apart from the absence of any formal application and supporting evidence) it was self-evident that (notwithstanding the new handwriting evidence which, in any event, did not exclude him from being the author) there was a strong prima facie case against the 2^nd Defendant upon the basis now put (the lateness of which was entirely the fault of the 2^nd Defendant) and that it remained in the public interest, and in accordance with the overriding objective, for the proceedings against him to continue to a resolution on the evidence.

Against the background of the strength of my conclusions in relation to the 1^st and 2nd Defendants, I next considered whether or not to grant an adjournment. I concluded that no other course was fair or sensible – in particular as insufficient time was available to carry on anyway, and a date in March 2018 was available.

I rejected Mr Goldberg’s suggestion of continuing in relation to the 3^rd Defendant alone. Whilst it was convenient for Judge Walden-Smith to deal with the applications for permission in two separate hearings, and although the Grounds are individual, it was in my view self-evident (given the interconnections between them) that it was overwhelmingly in the interests of justice that all the Defendants and all the Grounds be tried in one Final Hearing. The more so as a date in March was available.

Finally, I concluded that it was self-evident that the fairest course as to costs was to order that they be reserved.