The Serious Fraud Office & Anor v Litigation Capital Ltd

Case management is an exercise in pragmatic judgment directed to securing a fair and effective trial. Where issues have been deliberately separated for several years, and earlier applications to combine them have been rejected, a late attempt to alter that structure will generally be refused unless fairness and the trial’s purpose require it.

The court should assess whether excluding an issue would undermine the intended finality of the trial, whether adding a connected issue is practicable within the available time, and whether the parties have had a fair opportunity to obtain relevant evidence. The court should decide only matters that require determination and should keep the scope of issues under review during trial.

The proceedings concerned competing proprietary claims to assets transferred under settlements arising after earlier litigation. A ten-week Directed Trial was ordered to determine principally claims concerning the Isle of Man and Geneva Settlements.

The Geneva Nominee Issue concerned whether Mr Stevens acted as Mr Ruhan’s nominee in relation to the Geneva Settlement. The connected Cambulo Nominee Issue concerned an earlier hotel transaction in 2005, but had been excluded from the Directed Trial and was to be determined separately.

Shortly before trial, HPII and Phoenix and Minardi sought to remove the Geneva Nominee Issue from the trial or to add the Cambulo Nominee Issue, arguing that the issues were inextricably linked and that separate determination might cause unfairness or inconsistent findings.

1. The Geneva Nominee Issue remained in the Directed Trial. Removing it could significantly undermine the purpose of the trial, which was to resolve proprietary claims concerning the Geneva Settlement. The issue also affected pleaded claims under Insolvency Act 1986 s423 and allegations of unclean hands, as well as the Stewarts Discharge Application.
2. The Cambulo Nominee Issue was not added. The two issues had been scheduled for separate determination since April 2018. Popplewell J and Moulder J had rejected attempts to expand the Directed Trial, and the parties now seeking the change had previously resisted such expansion. Adding the issue shortly before trial was impracticable and unfairly disruptive.
3. Relevant evidence concerning excluded issues could nevertheless be used where it was relevant to an included issue. The absence of disclosure ordered specifically for the Cambulo Nominee Issue did not prevent reliance on documents relevant to the Geneva Nominee Issue.
4. The court treated case management as an exercise in real-time pragmatism. It would keep under review during the Directed Trial whether all aspects of the Geneva Nominee Issue required determination, particularly where an issue stood or fell with HPII’s upstream tracing claim. Any further evidence required permission, and applications should be narrowly focused.
5. The court encouraged the parties to clarify the scope and consequences of HPII’s s423 and unclean-hands claims. The Stewarts Discharge Application would not, by itself, justify retaining the Geneva Nominee Issue if the parties gave sufficiently clear commitments reducing its significance.