Orford v Rasmi Electronics & Anor

A trial judge may control the scope of a hearing under the overriding objective, including by considering summary disposal during a trial. However, a litigant in person must receive sufficient notice and time to prepare before an issue is summarily determined. Procedural rules requiring advance notice for specially listed hearings do not necessarily govern the main trial, but they do not displace the requirements of fairness. A serious procedural irregularity causing prejudice may invalidate summary judgment and require the issue to be reconsidered. Fresh evidence may justify a retrial where it could not reasonably have been obtained earlier, would probably influence the result, and is apparently credible. A retrial is appropriate where undisclosed documents and late evidence deprived a party of a fair opportunity to meet the case.

Colin Orford appealed, with permission granted by Potter LJ, against the Newcastle County Court’s decision of 5 June 2001. His claim for misrepresentation against his former employer, Rasmi Electronics Ltd, and its managing director, Dr Surendra, had been summarily dismissed at the beginning of the trial. His separate defamation claim, concerning a report alleging that he had staged a workplace accident, had been dismissed after a full hearing.

The appeal concerned whether the summary disposal of the misrepresentation claim was procedurally permissible and whether fresh evidence concerning a factory plan justified reopening the defamation claim. The central issues were the fairness of summary determination during trial and whether the fresh evidence could materially affect the finding of qualified privilege and absence of malice.

The court allowed the application to admit fresh evidence and directed a retrial of the defamation claim. It also directed an early directions hearing before a new circuit judge concerning the misrepresentation claim.

1. Misrepresentation claim. The court held that the notice provisions in CPR 3.3(3) and CPR 24.4(3) addressed hearings specifically arranged for an order made on the court’s own initiative or for summary judgment. They did not prevent a trial judge from controlling the scope of the main hearing under CPR 1.4.
2. That power remained subject to procedural fairness. Mr Orford, acting in person, had received substantial documentation only on the first morning and had insufficient time to prepare arguments on affirmation, illegality and damages. The resulting irregularity fatally undermined the summary judgment. The claim was therefore remitted for orderly consideration, without any conclusion that it had merit.
3. Fresh evidence and retrial. The affidavit evidence satisfied the requirements that it could not, with reasonable diligence, have been produced at trial, that it would probably have an important influence on the result, and that it was apparently credible.
4. The defendants’ late production of the factory plan, despite disclosure directions, deprived Mr Orford of a proper opportunity to investigate the location of his office, obtain a view or photographs, or call responsive evidence. The late production of a loss adjuster’s report created a further procedural disadvantage. If the plan had been fabricated, that could affect whether the defendants honestly believed that the accident had been staged. A retrial of the defamation claim was therefore required.

Directions were ordered for both claims, including skeleton arguments, a definitive damages schedule and proper management of the evidence.

• Court of Appeal (Civil Division): Orford v Rasmi Electronics & Anor, [2002] EWCA Civ 1672. Appeal against the Newcastle County Court decision allowed in part. Fresh evidence admitted and defamation claim remitted for retrial; misrepresentation claim remitted for an orderly directions hearing.
• Newcastle County Court: On 5 June 2001, His Honour Judge Bowers summarily dismissed the misrepresentation claim and dismissed the defamation claim on its merits.