Sharma v Sood & Anor

A trial judge may refuse a litigant a second cross-examination where counsel has already cross-examined the opposing party on that litigant’s case, particularly where the litigant was present and gave instructions. The decision must consider fairness to both sides, the scope and length of the first cross-examination, the listed hearing time and whether further questioning could materially affect the result. A procedural complaint does not justify a retrial where omitted points were immaterial or could have been raised in the litigant’s own evidence or submissions. Appellate courts will not disturb factual findings that the trial judge was entitled to make on the evidence.

Ravi Sharma claimed repayment of £45,000 advanced to Rakesh Sood and Suman Kohli. The defendants said the money represented investments in partnership businesses, while Ms Kohli also denied being party to the relevant arrangements.

His Honour Judge Hamilton, sitting at Luton County Court on 8 December 2005, found that the payments were loans, that Mr Sood acted for both defendants, and that both were liable to repay the money. Mr Sood appealed, arguing that he had been wrongly denied the opportunity to cross-examine Mr Sharma personally after counsel’s instructions were withdrawn, and that relevant bank statements had not been admitted. The defendants also challenged the factual finding that the arrangements were loans rather than partnership investments.

1. Appeal dismissed. The Court of Appeal unanimously upheld the judgment requiring repayment of the £45,000.
2. Lord Justice Pill held that the judge was entitled to refuse a second cross-examination. Counsel had initially represented both defendants, had cross-examined Mr Sharma extensively on the wider case advanced by Mr Sood, and had received instructions from Mr Sood during that cross-examination. The judge was entitled to consider the scope of the questioning, the understanding of those present, fairness to both parties and the need to keep the hearing within its listed time.
3. The refusal did not make the hearing unfair or require a retrial. The proposed matters, including the use of the word partner, the bounced cheque, the absence of repayment terms and further bank statements, were either covered, immaterial to the decisive findings, or could have been raised in Mr Sood’s own evidence and closing submissions. Allowing a further cross-examination would have given Mr Sood a second opportunity to put his case and could itself have been unfair to the claimant.
4. The judge, as tribunal of fact, was entitled to rely on the evidence and the documents, including the absence of a partnership agreement or accounts and the inconsistency between the alleged partnership and other agreements concerning the businesses. He was entitled to find that the transactions were loans, that Mr Sood acted with Ms Kohli’s authority, and that there had been no partnership involving Mr Sharma.
5. Lord Justice Jonathan Parker agreed, emphasising that Mr Sood had been present, had participated through counsel and had subsequently given evidence himself. Lord Justice Moses agreed with both judgments. The application for a new trial was refused.

• Court of Appeal (Civil Division) — Appeal from the Luton County Court was dismissed unanimously: [2006] EWCA Civ 1480.
• Luton County Court — His Honour Judge Hamilton’s judgment of 8 December 2005 found that the £45,000 payments were loans and ordered the defendants to repay them.