Capital Funding One Ltd v Esqulant & Anor

A witness summons is not generally a means of evading sanctions imposed on a party who has failed to serve evidence. The court must identify the capacity in which the person is called. Where a former party attends under a genuine summons to support another party’s case, the evidence may be treated as evidence of that witness, engaging Civil Procedure Rules 34 rather than the defaulting party’s own obligation under rule 32.10. Permission may nevertheless be required because the party calling the witness failed to serve a witness statement or summary. The court should balance the reason for the default, the significance of the evidence, prejudice to each side and the overriding objective. An appellate court reviewing such a case-management decision should not order a retrial without demonstrated injustice.

The claimant appealed against District Judge Ransom’s decision to permit Daniel Esqulant to give evidence in proceedings concerning whether he had a beneficial interest in a jointly registered property. The claimant sought a final charging order over that interest. Alison Esqulant opposed the order, contending that she was the sole beneficial owner.

Mr Esqulant had failed to serve witness evidence in accordance with court directions. Alison Esqulant later obtained a witness summons requiring him to attend trial. The district judge permitted him to give oral evidence and found that there had been a common intention that Alison Esqulant should be sole beneficial owner. The central issues were whether CPR 32.10 and relief from sanctions applied to Mr Esqulant, whether CPR 34 could be used to call him as a witness for Alison Esqulant, and whether admitting his evidence caused an injustice.

1. The appeal was dismissed. The appeal was a review under CPR 52.21, not a rehearing. A case-management decision would not be interfered with unless it was plainly wrong or unjust because of a serious procedural or other irregularity: Global Torch Ltd v Apex Global Management Ltd (No. 2) [2014] UKSC 64.
2. The district judge was entitled to treat Mr Esqulant as attending under a genuine witness summons, for the benefit of Alison Esqulant and not to advance his own case. The evidence therefore engaged CPR 34 rather than CPR 32.10 as applied to his own default. The court nevertheless required permission under CPR 32.10 because Alison Esqulant had failed to serve a witness statement or summary.
3. The discretion to admit late evidence required consideration of the reason for the default, the significance of the evidence, prejudice if it was excluded, prejudice if it was admitted, and the need to do justice under the overriding objective. The evidence was central to the common-intention issue. Excluding it would have deprived Alison Esqulant of a proper opportunity to present her case. The claimant’s inability to prepare fully for cross-examination caused some prejudice, but no specific or material disadvantage was demonstrated.
4. Applying the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906, the failure was serious, there was a good reason for it, and the circumstances as a whole favoured relief. The court could dispense with a formal application.
5. A rehearing was unjustified. The claimant had received indications that Mr Esqulant’s evidence might be relied upon, had not sought an adjournment, and identified no realistic prospect of a different result. The trial was not a dress rehearsal: Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 4.

• High Court (Queen’s Bench Division): appeal from District Judge Ransom’s case-management decision dismissed. The finding that Alison Esqulant was the sole beneficial owner was left undisturbed.