Invest Bank PSC v Ahmad Mohammed El-Husseini & Ors

Under CPR 32.19, the deadline for serving a notice to prove is the latest date for serving the primary witness statements, not later supplemental statements. A deemed admission of authenticity is not impliedly withdrawn by a subsequent order for supplemental evidence.

A challenge to authenticity cannot be used as a covert, unpleaded allegation that a document was forged or falsely dated. Where no positive case of forgery or sham is pleaded, and the challenge serves no useful purpose, relief from sanctions should be refused under the Denton test.

Invest Bank applied under CPR 3.9 for relief from sanctions concerning a notice to prove a divorce agreement disclosed by Joan Eva Henry. The notice was served after the deadline for primary witness statements but before the deadline for supplemental witness statements. The Bank argued that it was therefore in time, or alternatively that relief should be granted.

The Bank wished to challenge the date of execution but did not allege that the agreement was forged or a sham. The central issues were the construction of CPR 32.19, the effect of the deemed admission, and whether relief from sanctions was justified.

1. The application required determination under CPR 3.1(2)(a) and CPR 3.9. CPR 32.19 was construed as referring to the latest date for serving the primary witness statements. It did not extend the notice-to-prove deadline whenever supplemental witness statements were later ordered. The rule was poorly worded and required consideration by the rules committee.

2. The Bank was deemed to have admitted authenticity on 2 March 2024. That admission was not impliedly withdrawn by the later order for supplemental statements. The notice served on 14 March 2024 was therefore out of time.

3. The three-stage test in Denton v TH White Limited [2014] 1 WLR 795 applied. The breach was serious and significant because it disrupted trial preparation and deprived the defendant of a proper opportunity to address the late-articulated challenge. There was no good reason: the delay resulted from an oversight and the relief application itself was issued only shortly before trial. The circumstances therefore weighed against relief.

4. The application served no useful purpose. Under Redstone Mortgages Ltd v B Legal Ltd [2014] EWHC 3398 (Ch), criticism of authenticity evidence could not amount to a covert and unpleaded case of forgery. The Bank’s proposed challenge to the date on the face of the agreement amounted to such an allegation. Eco3 Capital Ltd v Ludsin Overseas Ltd [2013] EWCA Civ 413 confirmed that a document falsely dated as to when it was made could be forged. The reasoning in OCM Maritime Nile LLC v Courage Shipping Co Ltd [2022] EWHC 476 (Comm) provided further support.

5. Relief from sanctions was refused.