Onecom Group Limited & Anor v Eve Connect Ltd & Ors

The court’s case-management powers under Civil Procedure Rules r 3.1(2)(p) are confined to orders genuinely required to manage proceedings and further the overriding objective. Where a party promptly corrects false or inaccurate evidence in accordance with the duties identified in Myers v Elman, the court ordinarily has no case-management jurisdiction to require a sworn explanation of how the error occurred or was discovered. Such matters are collateral and may generally be explored, if relevant, in cross-examination at trial. Any power to require explanatory evidence would be exceptional and should be exercised only where a clearly demonstrated primary case-management need exists, with particular caution because of litigation privilege, cost and delay.

The claimants brought proceedings arising from the sale of a business and an alleged wrongful exclusion from a service portal. They later issued an interim injunction application seeking continuation of service pending trial.

The injunction application was withdrawn after inaccuracies were identified in the claimants’ pleadings and evidence. The claimants promptly notified the defendants, filed corrective evidence and agreed to pay the costs of the application on the indemnity basis.

The defendants applied under CPR r 3.1(2)(p) for a further corrective witness statement explaining in detail how the inaccuracies occurred and how they were discovered. The issues were whether the court had jurisdiction, whether it should exercise any discretion, and whether the proposed order impermissibly engaged litigation privilege.

1. Application dismissed. The court had no power under CPR r 3.1(2)(p) to order the corrective witness statement sought. The rule’s wide wording is limited to steps taken for case management and furtherance of the overriding objective.
2. The relevant question was whether the requested evidence served a genuine, primary case-management purpose. Applying the approach in XYZ v Various [Companies] and RBS Rights Issue Litigation, an ancillary or collateral purpose is insufficient. QX v Secretary of State for the Home Department confirmed that a witness statement may be ordered for a case-management issue, but not to control the substantive evidence a party chooses to call.
3. The claimants and their solicitors had complied promptly with the duties described in Myers v Elman by correcting the inaccurate material at the earliest opportunity. Once those duties had been performed, no further case-management issue remained. The scope of the duty was to correct the false material, not to provide a sworn account of how the error arose or was discovered.
4. Bell v Dunmore was not followed to the extent that it might support a general modern power to require an explanation of how an erroneous statement was made. Myers v Elman was the later and comprehensive authority on modern practice. Original Beauty Technology Co Ltd v G4K Fashion Ltd concerned a materially different case involving a dishonest witness who had failed to correct known errors, and did not establish the jurisdiction or discretion contended for.
5. IBB Internet Services Ltd and others v Imagine Communications Group Ltd concerned Irish procedural practice. It did not justify requiring an English litigant to give a general explanation of how errors occurred or were discovered. Such a requirement risked satellite litigation, substantial additional cost and difficult privilege issues.
6. Even if such a discretionary power existed, it should be exercised only exceptionally and where a clearly demonstrated case-management need was primary. No such need existed here. Issues concerning how and why the errors occurred or came to light were collateral matters potentially suitable for cross-examination at trial, subject to the rules governing credibility and collateral issues.