Titan Wealth Holdings Limited & Ors v Marian Atinuke Okunola (Fullalove 4 and Special Measures)

Relief from sanctions may be granted where a late witness statement became necessary only after a new issue arose, the applicant acted promptly, and the opposing party suffers no prejudice. In harassment claims, the truth or falsity of offensive correspondence may be irrelevant where the conduct cannot be justified by the message’s content, or where the messages remain offensive and demeaning regardless of their truth. The court may limit cross-examination to issues capable of assisting the defence. Under Civil Procedure Rules 1998 PD1A, screens and other special measures may be ordered where a witness’s characteristics, the subject matter, or their relationship with a party may adversely affect participation or evidence.

The claimants brought proceedings for breach of confidence, breach of contract and harassment against a former employee. The court determined two preliminary applications before trial.

First, the claimants sought relief from sanctions so that a late witness statement, Fullalove 4, could be admitted. Secondly, they sought to restrict cross-examination of two witnesses on the truth of assertions in correspondence said to constitute harassment and to permit those witnesses to give evidence from behind screens.

The applications raised issues concerning relief from sanctions, the relevance of truth to the harassment claim, control of cross-examination, witness vulnerability and special measures in civil proceedings.

1. Relief from sanctions. Applying the three-stage approach in Denton v White [2014] 1 WLR 3926, the court granted relief under CPR 3.9. The need for Fullalove 4 arose only after new Companies House information generated an issue about authority to instruct solicitors. The claimants acted promptly, the breach was neither serious nor significant, and admission would cause no prejudice. It was likely to improve the efficiency and proportionality of the trial. The statement was therefore admitted.
2. Restriction of cross-examination. The court held that the truth of the factual assertions in the correspondence was irrelevant to the harassment claim. Applying Law Society v Kordowski [2011] EWHC 3185 QB, some conduct could not be justified by the content of the message, so proof of falsity was unnecessary. Further, applying Pattinson v Winsor [2024] EWHC 230 KB, the messages were offensive and demeaning even if reasonable people were unlikely to believe them. Cross-examination on truth would not assist the defence and was prohibited under CPR 32.1(3), within the wider power to control the issues requiring evidence under CPR 32.1(1)(a).
3. Special measures. The court applied CPR PD1A. Vulnerability includes a characteristic that may adversely affect participation or the giving of evidence. The two witnesses were vulnerable because of the correspondence’s subject matter and their relationship with the defendant, engaging paragraphs 4(e) and (f). Their evidence that screens had previously assisted them, together with threats in correspondence to their legal representatives, supported the order. Screens were compatible with a fair defence and were intended to secure the witnesses’ best evidence, not to determine the merits or prejudice the defendant’s reputation.
4. The claimants’ special-measures application was granted. The defendant remained permitted to ask focused questions, subject to the court’s control and the overriding objective.