WXY v Gewanter & Ors

In deciding whether a multi-party trial should be adjourned, the court must balance the requirements of a fair trial against the public interest in the prompt determination of proceedings. A trial against one defendant may proceed separately where the issues can fairly be determined without materially prejudicing absent parties or producing findings that affect their cases. Evidence is admissible only where it relates to a live pleaded issue. Putting an allegation to proof, or merely denying or not admitting it, does not make the underlying allegation a live issue. Evidence directed to unpleaded allegations, or to matters irrelevant to the pleaded case, should be excluded. Any permission to adduce evidence on a relevant issue must remain confined to that issue.

The claimant brought proceedings for breach of confidence, misuse of private information and harassment against three defendants, seeking injunctive relief and damages. The first and second defendants sought an adjournment because the first defendant was medically unfit to attend trial. The third defendant separately sought an adjournment, arguing that he would be prejudiced by the absence of the first defendant and that separate trials could produce inconsistent findings.

The third defendant also applied under CPR 33.2 to adduce evidence from four proposed witnesses. The central issues were whether the claim against the third defendant could fairly proceed alone and whether the proposed evidence concerned pleaded and material issues.

1. Adjournment of the claim against the first and second defendants. In light of medical evidence that the first defendant was temporarily unfit but was expected to become fit after treatment, the trial against those defendants was adjourned to the first available date after 11 October 2011.
2. Separate trial against the third defendant. The application to adjourn that claim was refused. The court had to balance two imperfect solutions: the need for a fair trial and the interest of justice in having proceedings determined. The claim against the third defendant centred on allegations directed principally against him. Those issues could be determined fairly in the absence of the first defendant, and findings would be unlikely materially to affect the first defendant’s case.
3. Relevance and pleadings. Evidence must relate to a live issue in the pleadings. The Court of Appeal had recently stated, in the same litigation, that the third defendant’s case was not that the alleged sexual relationship was true, but only that it might be true. Evidence seeking to establish whether the relationship actually occurred was therefore irrelevant to his pleaded case.
4. Evidence concerning unpleaded allegations that the claimant had hired a hitman or paid for recordings was excluded. Evidence from Mrs A concerning the extent to which the relevant allegations were in the public domain, and the nature of her relationship with the claimant, was admissible, but only within those defined limits.
5. Evidence from Ms D was excluded because it concerned unpleaded issues and hypotheses about the alleged sexual relationship. The application under CPR 33.2 was otherwise refused.

The proceedings against the third defendant were to continue on that basis. Consequential orders concerning the adjourned claim were to be agreed.

• High Court (Queen’s Bench Division): The present court noted that an earlier adjournment application had been refused by Mr Justice Tugendhat on 28 June 2011.
• Court of Appeal: On 6 July 2011, the Court of Appeal rejected a renewed oral application for permission to appeal in the same litigation and clarified the scope of the third defendant’s pleaded case.