Stokoe Partnership Solicitors v Grayson & Ors

A party who provides an affidavit for an interlocutory disclosure process does not thereby become liable to pre-trial cross-examination. Although the court may permit cross-examination where it is just and convenient, that discretion must be exercised according to established principles.

Pre-trial cross-examination is exceptional. It must not be used to compel a defendant to disclose evidence that may assist the claimant’s substantive case. Cross-examination concerning asset preservation, judgment enforcement or compliance with an ancillary disclosure order serves a different purpose and may be permissible.

The existence of substantive proceedings, the risk of collateral advantage and the availability of a request for further information are material considerations.

The claimant solicitors alleged that confidential information had been sought as part of attempts to interfere with litigation conducted by the firm. Mr Robinson identified Mr Grayson as the person who instructed him, but Mr Grayson’s affidavit denied requesting or obtaining the defined confidential information. The claimant commenced substantive proceedings against Mr Grayson and sought an order requiring him to be cross-examined on that affidavit before trial.

William Davis J refused the application. He considered that cross-examination would pre-empt the trial, that the claim was limited, that insufficient documentary material was available and that a request under Part 18 of the Civil Procedure Rules provided an alternative procedure.

The claimant appealed and applied to adduce evidence arising from subsequent pleadings, disclosure and answers obtained under Part 18. The central issue was whether a defendant could be compelled to undergo cross-examination before trial to obtain information relevant to the claimant’s case and to identify other alleged wrongdoers.

1. Appeal dismissed. The fresh evidence was admitted because the principles governing fresh evidence do not apply with their full rigour to an appeal from an interlocutory decision. The subsequent pleadings and disclosed documents were relevant, although they did not establish contempt by Mr Grayson.

2. CPR 32.7(1) permits a party to seek permission to cross-examine a person who gives written evidence at a hearing other than a trial. Even if the applicable test was whether cross-examination was just and convenient under section 37 of the Senior Courts Act 1981, that phrase did not confer a discretion of infinite width. The power had to be exercised according to established principles.

3. English law does not generally permit the compelled oral interrogation of an opposing party before trial. Established exceptions include examination of judgment debtors and cross-examination concerning asset disclosure ancillary to a freezing injunction. Those exceptions protect enforcement or prevent the frustration of a future judgment; they do not enable a claimant to establish its substantive case.

4. Cross-examination in aid of an asset disclosure order is exceptional. It must further the proper purpose of the order, be proportionate, avoid oppression or an ulterior purpose, and ordinarily respond to serious deficiencies in disclosure. The court must guard against the process being used to obtain a collateral advantage in the substantive litigation.

5. The classic Norwich Pharmacal jurisdiction concerns an innocent third party mixed up in another person’s wrongdoing. Mr Grayson was instead a defendant accused of participating in the wrongdoing. His agreement to provide an affidavit did not automatically expose him to cross-examination aimed at discovering evidence of the alleged conspiracy. An undertaking restricting the later evidential use of his answers would provide only limited practical protection.

6. The asset-tracing and post-judgment authorities were distinguishable. In those cases cross-examination supported enforcement, tracing or compliance with asset disclosure orders and was controlled so that it did not become an inquiry into the merits.

7. The judge’s principal reason was sound: compelling Mr Grayson to submit to cross-examination before exchange of witness statements and trial would improperly assist the claimant in building its substantive case. Further information under Part 18 was an available alternative and had moved the case forward. The court disagreed with the judge’s description of the underlying claim as limited, but that error did not invalidate the refusal of relief.

• Court of Appeal (Civil Division): Admitted the claimant’s fresh evidence but dismissed the appeal from the refusal to order pre-trial cross-examination. It made no order as to costs and refused permission to appeal to the Supreme Court: [2021] EWCA Civ 626.
• High Court, Queen’s Bench Division: William Davis J refused the claimant’s application to cross-examine Mr Grayson on his disclosure affidavit. No neutral citation for that decision is stated in the judgment.