Bilta (UK) Ltd ((in Liquidation)) and Others v SVS Securities Plc

Hearing date: 8 January 2021

Approved Judgment

I direct that no official note or transcription shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

. I am the designated judge in Financial List proceedings currently listed to commence on 25 January 2021. The week commencing 18 January 2021 has been allocated for reading in. The trial itself is listed for five weeks, commencing (as I say) on 25 January 2021.

. This is the second time the trial of this matter has been listed. It was due to have been heard early last year, but was adjourned due to the COVID-19 pandemic. The Fifth Defendant applies to adjourn the trial again. It does so for reasons directly related to the on-going COVID-19 pandemic.

. The Fifth Defendant – Tradition Financial Services Ltd ( TFS) – is the only active defendant in these proceedings. The Second to Fourth Defendants have negotiated an exit from these proceedings with the Claimant – Bilta (UK) Limited ( Bilta) – and the First Defendant is not participating in these proceedings, for reasons that are immaterial.

. The essential cause of action asserted by Bilta against TFS is that of dishonest assistance, which TFS strenuously resists. Without straying into the substance of the issues between the parties, it is clear – and I proceed on this basis – that issues of honesty and dishonesty will loom large during the course of the trial.

. As part of its defence, TFS will rely upon the evidence of four people. Listing them in alphabetical order by surname, they are:

(1) Mr Michael Anderson.

(2) Mr Luca Bertali.

(3) Ms Lucy Mortimer.

(4) Mr Peter Weston.

Obviously, given what I have said in paragraph 4, these witnesses (I shall generally refer to them as the Witnesses, although of course it is envisaged there will other testimony at trial, including expert evidence) will be centrally involved in the issues of the trial, including, in particular, in relation to the allegations of dishonesty advanced by Bilta. Not only will the Witnesses' evidence affect the outcome of the issues between Bilta and TFS, but it will affect their own reputation and future employability.

. So, as was common ground, the stakes are very high. This is something that underpins the entirety of this ruling; and the fact that I deal with the point briefly should in no way be taken as an indication that I understate its importance.

. All of the Witnesses want to give evidence. I do not wish to go too much into the motivation of the parties and the witnesses, but I should make the following points:

(1) TFS wishes to call the Witnesses in order to defend the claims made against it by Bilta.

(2) Bilta – given the evidence that TFS proposes to adduce – wants to test that evidence using the engine of cross-examination. Although perhaps dated by the language of the time, and verging on the hyperbolic, in essence I accept what Wigmore said about cross-examination being “beyond any doubt the greatest legal engine ever invented for the discovery of the truth” (Wigmore, Evidence, 2 ^nd ed (1923) at §1367). To be effective, cross-examination requires many conditions to be satisfied, one of which (and it is the one that I am concerned with in this application) is that the witness under examination fairly and effectively be able to give his or her evidence.

(3) Independently of TFS, the Witnesses positively wish to give evidence to vindicate themselves in light of Bilta's allegations. Obviously, on one level, the trial is only concerned with the issues as between Bilta and TFS, and the purpose of the trial is to determine those issues. But – and again this is not seriously contested by Bilta, and was positively advanced by TFS – I must bear in mind the effect of my judgment (particularly, if it is adverse) on persons apart from TFS. That includes – although it is not limited to – the Witnesses.

. Until late December 2020, Mr Anderson, Mr Bertali and Mr Weston were all ready and willing to attend the trial in person to give evidence, despite the “Tier 4” COVID-19 restrictions prevailing at that time. Since then, to quote from paragraph 3 of TFS's written submissions:

“Now, due to the dramatically worsening state of the pandemic, those witnesses have indicated strong reluctance to give evidence in person. Subsequent to TFS's indication of this difficulty, the concerns have been both justified and amplified by a further national ‘lockdown’.”

. I should make clear that I was not provided with evidence as to the extent and effects of COVID-19 across the UK and in particular in London, where this trial is due to be heard. That would have been burdensome and unhelpful, given the changing and developing circumstances. I am taking judicial notice of these facts and matters, including both the the recent “mutation” of the virus into something much more infective and the recent “spike” in infections, hospitalisations and deaths. I am also very conscious that these things may get worse, before they get better. Again, I am not going to labour these points, but they are unsurprisingly matters that underpin the entirety of this judgment, and which I have taken very carefully into account.

. Ms Mortimer falls into a different category to Mr Anderson, Mr Bertaili and Mr Weston:

(1) For medical reasons which I am not going to go into further, Ms Mortimer is now unable to attend the trial to give evidence. TFS notified Bilta (this was through solicitors, but I shall, in this ruling, simply refer to communications between TFS and Bilta) and the court that this was the case in early November 2020.

(2) By a “hearsay” notice under section 2 of the Civil Evidence Act 1995 and CPR rule 33.2, TFS stated that it “intends to rely on the First Witness Statement of [Ms Mortimer] dated 28 November 2019 as evidence of the truth of the matters stated”. No counter-notice has been served by Bilta.

(3) The position – as matters stand – is that Ms Mortimer's evidence will be admitted into evidence at trial, but that there will be no cross-examination of her. Inevitably, this will have an effect on the weight that I can attach to her evidence.

(4) I should make clear that it is only these medical reasons that are preventing Ms Mortimer from giving evidence, and that Ms Mortimer's position is otherwise as stated in paragraph 7(3) above.

. In terms of timing, it is relevant to note that the serving of a “hearsay” notice – and TFS's acceptance by the serving of that notice that it would have to defend itself without the benefit of Ms Mortimer's evidence in person – occurred before the change of position on the part of Mr Anderson, Mr Bertali and Mr Weston that I have described in paragraph 8 above.

. The position of all of the Witnesseses was set out in witness statements served in support of TFS's application to adjourn the trial. As Mr Scorey, QC, leading counsel for TFS, emphasised, the content of these statements (and in particular that of Ms Mortimer) contains private material which I should be careful not to disseminate too widely. I have made clear that I am prepared to protect these statements from third party sight without TFS first being heard on the point (and, of course, I have no doubt that TFS would convey to me the position of the Witnesses in any such application). I shall (for this reason) keep my references to this evidence to the generic, and avoid (so far as possible) the mentioning of specifics.

. However, it is necessary to say that in her evidence in support of this application, Ms Mortimer made clear that her medical issues are not, as was considered to be the case in November 2020, such as to preclude her attendance at trial whenever that trial took place. Although it is impossible (and I use that word advisedly) for Ms Mortimer to attend the trial as presently scheduled, there are excellent prospects that if I adjourned the trial, and it then took place (as it would, given the present state of the lists) in early-to mid-2022, Ms Mortimer would be able to attend to give evidence in person. That, it seems to me, is a self-standing point in favour of adjournment, which I must take into account. I will deal with it separately, and will consider first the principal reason why TFS seeks an adjournment now, which is that articulated in paragraph 8 above: namely, the “reluctance” of Mr Anderson, Mr Bertali and Mr Weston to give evidence in person at the Rolls Building, which is where this trial is scheduled to take place. In the following paragraphs, my references to the Witnesses is to these three gentlemen.

. It is necessary to say a few matters about the conduct of litigation and the administration of justice with particular reference to proceedings (as these are) in the Business and Property Courts in the Rolls Building in London:

(1) The courts in this country are – and are designated as – an essential service that is intended to (and has) continued during the pandemic. That is not to say that there have not been adjournments because of COVID-19 – there plainly have, and indeed the trial of this case was (as I noted in paragraph 2 above) an early victim of the COVID-19...