SK Thakrar & Co & Ors v Suburban Properties Ltd

Where fresh evidence raises serious allegations and cannot fairly be answered within the existing timetable, the court should adjourn the hearing and allow reasonable time for preparation. Case management should first identify the applications to which the evidence is relevant, define the factual issues, permit responsive pleadings and evidence, complete disclosure and obtain necessary expert evidence. The court must balance the prejudice caused by delay against the injustice of requiring a party to meet grave allegations without a fair opportunity to respond. A first-instance court may assist an appellate court by gathering and determining relevant evidence, but the appellate court controls its own procedure.

This was a second procedural ruling concerning applications by five parties, referred to as Group 3, who were also appellants in substantive appeals. The applications concerned the adjournment of a further hearing intended to consider applications arising from the substantive judgment, receive fresh evidence and make consequential findings before the Court of Appeal heard the substantive appeals.

The fresh evidence, principally from Ramila, raised issues concerning her alleged lack of knowledge of property transactions and proceedings brought in her name, possible fraud, the credibility of Group 3’s trial evidence, tracing and enforcement remedies, and the setting aside of judgments and a charging order. The central issue was whether the further hearing should proceed in November 2005 or be postponed to allow a fair investigation of those matters.

1. Adjournment granted. The court varied its earlier direction and directed that the further hearing should not take place until the parties had a proper opportunity to prepare. The gravity of the allegations, the significance of the fresh evidence and the need for substantial responsive evidence meant that a November hearing would create serious injustice.
2. The relevant applications and factual issues had to be identified before the hearing. The timetable was to provide for defining the applications to which Ramila’s evidence was said to relate, pleading the resulting factual issues, responses by Group 3, service of evidence, completion of discovery, handwriting expert evidence and any further responsive evidence.
3. The proposed hearing was expected to require substantial cross-examination and was to be listed no earlier than January 2006 term. The court also directed a further pre-trial conference involving the relevant parties and other potentially affected participants, including the trustee in bankruptcy and the companies concerned.
4. The fresh evidence was potentially relevant beyond Ramila’s own applications. It could affect the substantive appeals, the validity of transactions, tracing and enforcement proceedings, costs and the integrity of evidence given at trial. Those issues should not be artificially divided by trying only two limited questions in isolation.
5. The court recognised the parties’ rights under article 6 and the overriding objective. It also stated that the Court of Appeal must decide whether and when the substantive appeals should proceed, while the first-instance court would comply with any directions concerning the gathering of further evidence.
6. Ramila’s applications were to be formally identified and issued. They included setting aside the judgment and charging order, seeking an alternative declaration that proceedings brought in her name were a nullity, and restoring her action so that she could seek financial relief. The court proposed to dispense with the application fee under its inherent power because of her limited resources.

The ruling concerned procedural applications made during continuing proceedings and referred to substantive appeals fixed before the Court of Appeal. The judgment stated that the Court of Appeal would determine whether and when those appeals should proceed after being informed of the procedural developments.