Skatteforvaltningen (The Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors

Whether to adjourn a witness’s evidence is a case-management decision requiring an assessment of overall fairness. The court may proceed where the witness has received a sufficiently clear explanation of the narrowed case, the remaining allegations and damages claim are substantially unaffected, and any adverse effect on the witness’s preparedness can be taken into account when assessing the evidence. The inconvenience and disruption caused by rescheduling must also be weighed against the extent of any disadvantage in proceeding.

During the trial, Usha Shah applied to adjourn her factual evidence to the autumn. The application followed a letter from the claimant’s solicitors narrowing the case against her and confirming that conduct before 30 June 2014 would no longer be alleged to be wrongful.

The court considered whether the late clarification created unfairness or impaired her ability to give evidence, having regard to the pleadings, the claimant’s opening, the scope of the remaining allegations and the practical consequences of rescheduling.

1. Application refused. The trial would continue and Mrs Shah was expected to give evidence on the scheduled day.
2. The court was sufficiently positioned, as trial judge, to take account when assessing Mrs Shah’s evidence of any last-minute disruption to her composure or preparedness and its possible effect on her ability to give her best evidence.
3. The claimant’s letter could, with hindsight, have stated the position more plainly. The court was satisfied by counsel’s explanation and confirmation that Mrs Shah was no longer accused of wrongful conduct occurring before 30 June 2014.
4. On a fair analysis of the pleadings, the only pre-30 June 2014 matters previously in issue were her becoming an employee of Elysium Dubai and receiving payments in that capacity. Those matters were no longer alleged to be wrongful. The clarification therefore had a limited practical scope.
5. The substantial damages calculations against Mrs Shah related to losses allegedly suffered after 30 June 2014. The overall shape and size of the case against her was consequently unaffected in that respect.
6. Although an autumn hearing could probably be accommodated, the disadvantages of rescheduling for Mrs Shah and the other parties outweighed the degree of disadvantage arising from proceeding that day. The court therefore concluded that it was fair and appropriate to continue.