Hunt Annolight Ltd & Ors

The court may require a solicitor or other legal representative who has provided written evidence in interlocutory proceedings to attend for cross-examination. CPR 46.8 is not a complete code excluding the court’s powers under CPR 32.7 or its general case-management jurisdiction. Such attendance remains fact-sensitive and will ordinarily be inappropriate or disproportionate, but may be justified where privilege has been waived and there are materially conflicting accounts which cannot fairly be resolved without oral evidence. An appeal is also difficult to sustain where the relevant objection was not made below, particularly where the appellant positively submitted that the representative’s attendance might be required.

The claimant brought noise-induced hearing-loss proceedings against six defendants. The claim was discontinued shortly before trial after issues arose concerning an allegedly false Part 18 response and inconsistent accounts about hearing protection.

The County Court ordered that the claimant’s supervising solicitor attend a later hearing of applications for costs and related relief, including potential wasted-costs orders, so that he could be cross-examined. The solicitor’s firm appealed, arguing that CPR 46.8 deprived the court of jurisdiction to require attendance and that the order was an improper exercise of discretion.

1. Jurisdiction. The appeal against jurisdiction was dismissed. CPR 46.8(2), which gives a legal representative an opportunity to make written submissions or attend a hearing before a wasted-costs order is made, is not a complete procedural code excluding other powers of the court.
2. Following Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd, the court held that there is no rule or principle preventing a legal representative from being required to attend for cross-examination in relation to a wasted-costs application. Such cross-examination will usually be inappropriate or disproportionate, but the jurisdiction exists.
3. CPR 32.7 provided an additional jurisdictional basis because the supervising solicitor had chosen to provide a witness statement. The court rejected the submission that CPR 46.8 excluded CPR 32.7. CPR 36.1 illustrated that, where a complete code is intended, the rules make that clear.
4. The power is fact- and context-dependent. The court referred to Republic of Djibouti v Boreh as an example of a solicitor being required to attend for cross-examination.
5. Discretion and appeal. The order was a proper exercise of discretion. The firm no longer acted for the claimant, privilege appeared to have been waived, and the solicitor’s account materially conflicted with the claimant’s account on issues central to the applications. Oral evidence was likely necessary for a fair and proportionate resolution, and the issues could be managed consistently with the Overriding Objective.
6. It was inappropriate to criticise the judge for failing to consider matters never raised before him. The appellant had positively submitted below that the solicitor’s attendance might be required. The court nevertheless considered the matter afresh and concluded that the order was overwhelmingly justified. The appeal was dismissed.

1. High Court (Queen’s Bench Division): The appeal from the County Court order of 22 April 2020 was dismissed. Permission to appeal had been granted on 9 October 2020.
2. County Court: His Honour Judge Godsmark QC directed the claimant’s supervising solicitor to attend for cross-examination at the hearing of applications concerning costs and potential wasted-costs orders.