Michael, Estate of & Ors v The Islamic Republic of Iran & Anor

When a party seeks permission to adduce evidence very late, the court must apply the overriding objective by balancing the reason for the delay, the evidence’s significance, prejudice to all parties, the effect on other court users, proportionality, expedition and compliance with case-management directions. A good reason and material evidence may justify admission where the issue can be dealt with in a self-contained and proportionate way. Permission should be refused where the evidence raises complex new issues, causes substantial disruption or delay, and there is no adequate explanation for the lateness.

The claimants sought to enforce twelve judgments of the United States District Court for the District of Columbia against Iran and the Iranian Ministry of Information and Security. In the context of preliminary state-immunity issues, they applied for permission to rely on a further witness statement concerning Iran’s United Nations presence in New York and an expert report concerning the jurisdictional reach of the District of Columbia court over New York entities.

The application was made after the four-day state-immunity hearing and after the parties’ submissions on those issues had closed. The central questions were whether the lateness was justified, whether the new material was significant, and whether its admission would be fair and proportionate.

1. Application granted in part. Permission was granted to rely on the expert report of Timothy K Lewis. Permission was refused for the second witness statement of Curtis Mechling and its enclosures.
2. The court applied the principles stated in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm) and Foster v Action Aviation [2013] EWHC 2930 (QB). The relevant considerations included the reason why the evidence was not produced earlier, its significance, prejudice to the applicant and other parties, the overriding objective, proportionality, expedition, court resources and compliance with orders. The principles governing very late amendments and late evidence were substantially the same.
3. In relation to the Lewis Report, there was a good reason why the evidence had not been adduced earlier. The jurisdictional-reach issue had been raised late by the defendants, the report was sufficiently significant and probative, and the point was discrete. The report could therefore be dealt with proportionately if it became critical after a successful appeal. It was directed that the evidence would be prepared for and heard only if necessary following such an appeal.
4. The claimants bore the burden of proving the factual jurisdictional requirements relied on under section 31(1)(a) of the Civil Jurisdiction and Judgments Act 1982. Although the defendants’ point concerning the separate jurisdictional reach of the District of Columbia court should technically have been raised earlier, the circumstances provided a good reason for the late evidence.
5. The Mechling evidence was different. The United Nations presence argument had not been advanced in good time, there was no satisfactory explanation for the delay, and its admission would require extensive further factual and expert evidence. It would cause serious disruption and delay, and the proposed material did not demonstrate a sufficiently strong new case. The claimants could not rely on an earlier solicitor’s statement as a substitute for advancing and preparing their own case.