Promontoria (Oak) Ltd v Emanuel & Anor

The “best evidence” rule is not a rule requiring production of an original document whenever it is available. It is guidance governing whether secondary evidence should be admitted and what weight it should receive. The court must consider the probative difference between the primary and secondary evidence, the issue in dispute, the reason for non-production and the procedural history.

Where title depends on documents of assignment, the complete document and documents incorporated into it are prima facie relevant. Confidentiality alone does not justify withholding relevant material. An appellate court may interfere with a first-instance evidential decision where it falls outside the range of decisions reasonably open to the judge.

Promontoria (Oak) Limited claimed as assignee of debts originally owed to Clydesdale Bank. At trial, the claimant relied on a substantially redacted deed of assignment and other documentary and witness evidence. The defendants challenged both the adequacy of the evidence proving chain of title and the claimant’s reliance on secondary evidence without producing the unredacted deed and the Sale and Purchase Agreement referred to in it.

Mr Recorder Willetts found for the claimant and held that the claimant had established title. Permission to appeal was granted on whether the redacted deed was admissible, whether it proved title, and whether the evidence as a whole established a valid chain of assignment.

1. Appeal allowed. Grounds 2 and 3 failed because, on the evidence actually before the recorder, he was entitled to find that the debt had been assigned to Promontoria Oak. Ground 1 succeeded because the recorder’s decision to admit and rely on the redacted deed, despite the relevant evidence not before the court, was outside the range of decisions reasonably open to him.
2. The court adopted the approach in Masquerade Music Ltd v Springsteen, [2001] EWCA Civ 563. The best evidence rule had ceased to be a rule of law. Whether secondary evidence should be admitted, and what weight it should receive, were matters for judicial evaluation in the circumstances of the case.
3. Relevant considerations included: the probative difference between primary and secondary evidence; the issue between the parties; the reason why the original was not produced; and the procedural history, including whether disclosure issues had been raised and resolved before trial. These factors were not exhaustive.
4. The recorder was entitled to accept that the redactions had been made on grounds of confidentiality. He was nevertheless wrong to treat the redacted material as irrelevant merely because the evidence before him appeared sufficient to establish title. Relevant material could undermine, rather than reinforce, the conclusion suggested by the disclosed evidence.
5. Documents of title, including documents incorporated by reference, were prima facie disclosable in their entirety because it was generally necessary to consider the complete transaction to understand the transfer. Confidentiality was not, by itself, a sufficient reason to withhold relevant material.
6. The defendants had failed to use available interlocutory procedures to remedy the claimant’s defective disclosure before trial. That failure was relevant, but it did not cure the claimant’s deliberate reliance on incomplete evidence when the chain of title was expressly in issue.
7. The appropriate course was not remission for a fresh trial. The finding that the redacted deed established title to sue was set aside. The parties were directed to frame an appropriate order, with any unresolved disagreement to be determined at a further hearing.

1. High Court (Chancery Division): the appeal from the order of Mr Recorder Willetts dated 18 July 2018 was allowed. Grounds 2 and 3 failed; Ground 1 succeeded.
2. High Court (Chancery Division): permission to appeal was granted in relation to Grounds 1 to 3. Permission was refused in relation to Grounds 4 to 6. An application to adduce new evidence and introduce Ground 7 was refused in [2019] EWHC 2898 (Ch).