BGC Brokers LP & Ors v Tradition (UK) Ltd & Ors

Witnesses and parties are ordinarily entitled to attend a public civil trial. Exclusion is exceptional and requires a particularised good reason showing that justice would otherwise be put at risk. Any restriction must be necessary and proportionate.

Evidence should be assessed in two stages: first, whether it is potentially probative and therefore admissible; secondly, whether case-management considerations justify excluding it. Late amendments may be refused where they introduce substantial factual allegations, require further investigation and prejudice a fair and orderly trial. Permission to appeal a discretionary case-management decision requires a realistic prospect that the decision was wrong, or another compelling reason.

The judgment concerned two jointly managed commercial claims involving alleged misuse of confidential information, unlawful team moves and breaches of contractual, fiduciary and equitable duties.

At a pre-trial review, the court determined applications to exclude witnesses and restrict their access to the hearing, to excise factual material from witness statements, and to deal with trial directions. The court also heard BGC’s renewed application for permission to appeal against a Senior Master’s refusal to permit late amendments increasing the damages claim and adding an account-of-profits remedy.

The central issues were whether the proposed restrictions and evidential exclusions were justified, and whether the proposed amendments could be accommodated without compromising a fair trial or the existing trial timetable.

1. Witness exclusion. The applications to exclude the relevant witnesses, prevent access to transcripts and require Mr Bell to give evidence first were refused. Open justice is the starting point. Although the court has power to exclude witnesses where necessary to protect the quality, purity and reliability of evidence, exclusion requires good reasons arising from the particular facts. The risks identified were ordinary features of adversarial civil litigation and did not justify disproportionate interference with the right to attend the hearing or with a party’s control over presentation of its defence. The position was especially strong for Mr Bell, who was a party to the proceedings: R (on the application of Guardian News and Media Limited) v Westminster Magistrates’ Court and another [2012] EWCA Civ 420; Luckwell v Limata [2014] EWHC 536 (Family); De Costa & Another v Sargaco & Another [2016] EWCA Civ 764.
2. Excision of evidence. The court applied the two-stage approach in JP Morgan Chase Bank & Others v Springwell Navigation Corporation [2005] EWCA Civ 1602. Evidence must first be potentially probative of a pleaded issue. If so, the court must consider whether case-management factors nevertheless require exclusion, including distortion of the trial, unfair prejudice and the burden imposed on the opposing party. Evidence from Mr Manston about Mr Bell’s earlier involvement with an approach by ICAP was potentially relevant to the pleaded issue of Mr Bell’s influence over the RPM Five and was not excised at this stage. However, opinions and inferences in Mr Manston’s second statement, allegations that Mr Bell acted unlawfully in relation to the earlier ICAP approach, and repeated hearsay in Mr Warner’s statement were inadmissible or would unfairly distort the trial and were excised.
3. Permission to amend and appeal. The Senior Master was entitled to refuse late amendments that introduced extensive new factual allegations and substantially increased the damages claimed. Tradition was entitled to investigate the amended case, seek further information and disclosure, obtain evidence and reconsider its expert case. The proposed account-of-profits amendment also raised the prospect of a further hearing and had not been addressed in the earlier case-management timetable. The Senior Master properly considered fairness, proportionality, expense, finality and compliance with court directions.
4. Permission to appeal. Under CPR 52.6(1), permission required a real, rather than fanciful, prospect of success or another compelling reason. For a discretionary case-management decision, intervention required an error of principle, failure to take relevant matters into account, reliance on irrelevant matters, or a decision outside the generous ambit of reasonable disagreement. None of the grounds met that threshold. The renewed application for permission to appeal was refused.

The Senior Master refused BGC’s application to amend the re-amended particulars of claim and schedule of loss. Stewart J refused permission to appeal on the papers by order dated 17 October 2019. The renewed oral application was refused by the High Court.