Stokoe Partnership Solicitors v Robinson & Ors

Cross-examination on a disclosure affidavit in the Norwich Pharmacal jurisdiction is available only in exceptional circumstances. The governing question is whether the order would be just and convenient. Relevant considerations include whether the existing disclosure has significant deficiencies, whether documentary or digital material contradicts it, whether cross-examination is likely to achieve the purpose of identifying the ultimate wrongdoer, whether it would be proportionate, and whether another procedural route is available. A mere contradiction between affidavits does not ordinarily justify cross-examination. The court should also avoid using such an order to pre-empt cross-examination at the trial of continuing proceedings.

In two linked proceedings, Stokoe Partnership Solicitors sought orders requiring Mr Robinson and Mr Grayson to be cross-examined on disclosure affidavits sworn pursuant to consensual orders. The firm alleged that confidential information had been obtained in connection with litigation concerning Karam Al Sadeq and sought to identify the ultimate wrongdoer.

The proceedings against Mr Robinson had been stayed after the parties compromised the claim. The claim against Mr Grayson remained current and was based substantially on Mr Robinson’s affidavit. The two affidavits gave inconsistent accounts of Mr Grayson’s involvement. The central issue was whether cross-examination was within the court’s jurisdiction and, if so, whether it was just and convenient to order it in these circumstances.

1. The court accepted that cross-examination on an affidavit can be ordered in an appropriate case under section 37 of the Senior Courts Act 1981 and the court’s inherent jurisdiction. It proceeded on the assumption that such jurisdiction could extend to an affidavit sworn pursuant to a disclosure order in the Norwich Pharmacal jurisdiction.

2. The Norwich Pharmacal jurisdiction requires: an actual or arguable wrong by an ultimate wrongdoer; a need for disclosure to enable proceedings against that wrongdoer; and a respondent who has been mixed up in the wrongdoing and is able, or likely to be able, to provide the necessary information.

3. Cross-examination intended merely to identify an ultimate wrongdoer should be ordered only exceptionally. The overarching test is whether it is just and convenient. The court should consider whether the affidavit contains significant or serious deficiencies, whether documents or digital material contradict it, whether cross-examination is likely to further the proper purpose of the disclosure order, and whether the procedure would be proportionate and free from oppression or an ulterior purpose.

4. The application against Mr Robinson was a fishing expedition. His affidavit had followed extensive questioning, the firm had pleaded its case on the basis that his evidence was truthful, and the alleged inconsistency with Mr Grayson’s evidence did not establish that Mr Robinson had failed to disclose everything. The stayed proceedings did not justify reopening the disclosure process.

5. The application against Mr Grayson was also refused. Cross-examination would substantially overlap with the issues to be determined at trial, the alleged wrongdoing was limited and historic, there was no new documentary or digital material of the kind present in the earlier asset-tracing cases, and Part 18 provided a possible route for seeking further information. It would not be just and convenient to order cross-examination.

6. Both applications were dismissed.