FVS Investments Limited v G3 Good Governance Group & Ors

A claimant must comply with an order requiring evidence from an individual who purported to act for it, unless it proves that obtaining the evidence is impossible or highly impracticable. The obligation rests on the claimant, even if the individual is no longer an officer or is not a party to the proceedings. Evidence from another person does not satisfy an order specifically requiring the individual’s own witness statement attesting to identity. Failure to comply may justify striking out under Civil Procedure Rules 1998, rule 3.4(2)(c), where the application is confined to non-compliance with the order.

The defendants applied under rule 3.4(2)(c) to strike out a claim brought in the name of FVS Investments Limited, an annulled Marshall Islands company. The application followed an earlier order requiring the claimant to file and serve a witness statement from Mr Usman Ahmad, who had apparently signed the claim form and particulars of claim as the claimant’s director, attesting to his identity.

No such evidence was filed. The claimant relied instead on statements from Mr Artemiou, asserting that Mr Ahmad had ceased to be a director and that his evidence could not be compelled. The central issue was whether that non-compliance justified striking out the claim.

1. Application granted. The claimant had not complied with the earlier order requiring evidence from Mr Ahmad concerning his identity. The order was directed to the claimant, not to Mr Ahmad personally, so his status as a non-party did not answer the application.
2. The claimant’s assertion that Mr Ahmad had resigned was immaterial. The obligation remained unless the claimant demonstrated that obtaining his evidence was impossible or highly impracticable. No such evidence was produced. The claimant could have obtained evidence from company books, corporate records or the Marshall Islands registry, and a short affidavit from Mr Ahmad with identity confirmation and a passport copy would have been sufficient.
3. Evidence from Mr Artemiou that he knew or had met Mr Ahmad did not comply with an order specifically requiring Mr Ahmad’s own witness statement attesting to his identity.
4. The identity issue was materially relevant because Mr Ahmad had apparently signed the claim form and particulars of claim for the company. If he did not exist, the proceedings may have been commenced without the authority of a company officer.
5. The application was confined to non-compliance with the order. Arguments concerning the merits, harassment, privacy and due process did not answer that application. A merits-based strike-out application would have required reliance on rule 3.4(2)(a), or a wider and clearly articulated application under rule 3.4(2)(c).
6. The failure to comply was a plain breach of the order, and the defendants were entitled to seek relief under rule 3.4(2)(c). The judgment records that the proceedings were another example of proceedings issued in the name of an annulled company using a familiar pseudonym.