DR EBRAHIM SOUFIANI v MR MOHAMMED RAHMAN

A judge may refuse to admit documents first produced during closing submissions where they should have been raised earlier with a single joint expert and the expert is not available to give oral evidence. The decision is a case-management judgment.

Relief against sanctions is also a discretionary case-management decision. The court may consider the complete period of default, including late service of appendices and delay in making the application, together with the effect on the trial timetable. An appellate court will not interfere where the decision was reasonably open to the first-instance judge.

Where injunctive works are ordered consistently with expert evidence, concerns about safety or legality should ordinarily be raised with Building Control or by an application to vary the order, rather than by an appeal.

This was a renewed application for permission to appeal from an order made by HHJ Lethem on 23 April 2021 after a two-day trial. The respondent had succeeded in a claim for damages arising from trespass or nuisance connected with works in the appellant’s garden.

The order awarded damages and required the appellant to rebuild a wall and fill voids beneath the foundations of an outbuilding. The proposed appeal concerned the refusal of relief against sanctions for late service of the appellant’s witness evidence, the refusal to consider documents handed up during closing submissions, and alleged danger or unlawfulness in the ordered works.

1. Permission refused. None of the proposed grounds had any prospect of succeeding on appeal.
2. The first-instance judge was entitled to refuse to consider photographs, a video, correspondence and related documents handed up for the first time during closing submissions. The documents had been sent to the single joint expert and were included in his report, but the appellant had not used the opportunity to raise questions arising from them. Since the expert gave written evidence only, it was too late to introduce new arguments at trial without putting them to him.
3. The refusal of relief against sanctions was a discretionary case-management decision. Although the main witness statement was only one day late, its appendices were not served until several months later. The judge was entitled to treat the statement as improperly served until the appendices were provided and to take account of the appellant’s failure to make the application promptly, despite earlier recognition that one was required. The judge had not read the statement before deciding the application, but had assumed in the appellant’s favour that substantial prejudice would result. That error did not make the decision appealable.
4. The complaint that the works were dangerous or unlawful also had no realistic prospect. The condition of the outbuilding had been addressed by the expert, and the order required preliminary checks of the building’s stability before the works proceeded. Any question of legality should be raised with Building Control. If new circumstances required a variation, the appropriate course was an application to the first-instance court, which retained supervisory jurisdiction over the injunctive relief until the works were completed.

• Chancery Appeals (ChD): Renewed application for permission to appeal refused. The court upheld the practical effect of HHJ Lethem’s order and concluded that none of the proposed grounds had any prospect of success.
• First-instance court: On 23 April 2021, following a two-day trial, the respondent succeeded in a claim for damages for trespass or nuisance. The appellant was ordered to pay damages and carry out specified remedial works.