Cox v Jones

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Justice Mann
Judgment Date24 Jun 2004
Neutral Citation[2004] EWHC 1006 (Ch),[2004] EWHC 1486 (Ch)
Docket NumberCase No: HC03C1590

[2004] EWHC 1006 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Mann

Case No: HC03C1590

Between:
Kerry Cox
Claimant
and
Lawrence Jones
Defendant

Mr Michael Roberts (instructed by Reynolds Porter Chamberlain) for the Claimants

Mr Michael Ashe Q.C., Mrs Constance Mahoney (instructed by Lake Jackson) for the Defendants

Mr Adam Wolanski appeared on behalf of The Times

Hearing dates: 4 th May 2004

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Mann Mr Justice Mann
1

This judgment contains the reasoning behind my decision, which I delivered without reasons, on the morning of 4 th May 2004, which was day 9 of this trial. My decision related to the extent to which one of the witness statements in these proceedings, and the statements of case, should be open to inspection. The matter arose in the following way.

2

In the normal way, witness statements were served in this case. In the case of several of the Claimant's witnesses, statements were served under cover of Civil Evidence Act notices on the footing that for one reason or another those particular witnesses could not attend. At the time of the opening of this case it became apparent that, in the case of several other witness statements not served under cover of such a notice, the Defendant did not seek to cross examine those witnesses. In those circumstances those statements were admitted as part of the Claimants case, again under the Civil Evidence Act 1995.

3

This case concerns the ownership of certain properties. The questions arise as between the Claimant and the Defendant as a result of the break-up of their relationship. They had at some point of time been engaged. Their relationship effectively came to an end in mid 2001. The nature of that relationship from time to time is one of the matters at the heart of this case, because the transactions which are said to have taken place between the two, have to be measured against what that relationship is found to be. In that context the Defendant had actually pleaded that the Claimant had had certain relationships with other men, both before and during the period of his own relationship with her. His Defence accused her of lies and deceit in respect of those relationships. The Defence also contained an allegation that the Defendant had in effect set up her claims during the relationship by bringing about, or bringing into existence, certain of the evidential material which she now relies in support of her claim. This particular allegation has become known as the "gold-digger" allegation, in the short-hand of this case. In dealing with the allegations of relationships, Mr Jones' witness statement identifies a number of men.

4

When Miss Cox was cross-examined, none of the matters which I have just referred to were put to Miss Cox. It was not put to her that she had actually had relationships with any of the men in question at any particular time, or that she had been guilty of lies and deceit in respect of any relationships. Furthermore, no questions were put to her on the footing that she was guilty of the matters alleged in the gold-digger allegation. Rather, it was put to her that she became motivated to make the claim that she makes in this action upon hearing that Mr Jones was re-marrying. That was a fundamental shift of position. At the end of the cross-examination I pointed out to Mr Ashe Q.C., who appears for Mr Jones that the gold-digger allegation had not been put, and he accepted that and said that he did not maintain that allegation.

5

A number of other witnesses then gave evidence for Miss Cox. Again, none of the allegations of actual relationships were put to any of the witnesses (in truth it would not have been appropriate to put it to most of them), and of course the gold-digger allegation was not put either. Her case was closed towards the end of day 4 of this hearing. The first thing that happened in the advancement of Mr Jones' case was, not surprisingly, that he was called as a witness. He confirmed his witness statement with some minor and, for these purposes, irrelevant amendments. Mr Roberts then embarked on cross-examining Mr Jones, and he started by pointing out those parts of Mr Jones' witness statement which had not been put to Miss Cox – they were extensive. At this point there was a debate between myself and counsel as to where matters stood in relation to matters which had not been put and advanced, and I required the Defendant, through his legal team, to indicate those parts of the Defence and witness statement which would not be relied upon in the case. Over night they provided pages of the Defence and witness statement which were underlined to indicate those parts which I have just referred to. They included the "gold-digger" allegation, and one specific reference to an allegation of certain behaviour with an individual contained in the Defence (not identifying the individual in question but identifying him as a member of the Bar). Certain parts of the witness statement were similarly underlined, as were parts of a Response to a Request for Further Information. Basically those documents identified some, but not all, of the allegations of the behaviour and relationships between Miss Cox and other people. At the opening of the case at the beginning of the next day Mr Roberts, who appears for Miss Cox, indicated that he needed to know whether or not it was appropriate for him to cross-examine in relation to the matters that would not be relied on. This slightly oblique form of request was ultimately identified as being implicitly an allegation to strike out offending material, extending not merely to the underlined passages provided by Mr Jones' team but to further passages which Mr Roberts said were equally objectionable as not having been put to his client; and that it was how it was treated. Mr Roberts said that he needed to known where he stood, and that if important allegations were not being pursued they should be struck out of the relevant document. At the time it seemed to be important to identify the issues which were still live and those which were not still live so that the scope of the remainder of the case and in particular cross-examination, could be determined. For that reason I struck out certain parts of the Defence – not only those parts underlined by the Defendant's counsel but also certain other parts which it seemed to me could no longer be maintained in the light of the way in which Mr Jones' case was not put. As well as providing me with the underlined passages, counsel for Mr Jones provided a note which indicated that the "sexual allegations" made against Miss Cox were not being pursued as such because they were not relied on as facts relevant to the case. What was relevant was Mr Jones' jealously of Miss Cox and his perception of her behaviour in this respect. With that clarification I struck out parts of the Defence. I did not go on to order the striking out of any corresponding parts of the Further Information simply on a time footing – once the main allegations had been struck out, any dependent Further Information would become irrelevant and it did not seem to me to be worth the time involved in going through what was a very extensive document with a pencil of an appropriate colour. The parties clearly knew where they stood. Mr Roberts, very sensibly, did not pursue that point further. Mr Roberts also suggested that part of the witness statement of Mr Jones should be struck out. I declined to make that order for at least two reasons. First, it did not seem to me to be obvious that a witness statement, or parts of it, could be struck out when it had actually been confirmed by the witness in the witness box and had become part of his evidence in chief. Second, the exercise of working out, almost on a sentence by sentence basis in relation to a long witness statement, which part should stay and which part should go seemed disproportionate in terms of time. It was left on the footing that the survival or otherwise of parts of the witness statement would be dealt with in final speeches. However, it is my strong recollection (without having a transcript of what I said at the time) that the question of striking out parts of the witness statement was left open for further argument if necessary. For better or worse, my decision enabled the case to proceed without too much delay.

6

The case then suddenly seemed to attract the attention of the media. From day 6 onwards, the proceedings were, as I understand it, reported in a number of daily newspapers. Over lunchtime on Day 8 (Friday 30 th April) I received a witness statement from a reporter from The Times who had been covering the trial, seeking clarification of what might and might not be reported in this case, and seeking inspection of witness statements. At 2.00pm I ruled that the witness statements of all those who had hitherto given evidence, with the exception of Mr Jones, should be open to inspection; my ruling in effect covered the Civil Evidence Act notices to which I have referred. So far as the latter notices are concerned, proper and accurate reporting of this case would require that those documents be made available as well. I reserved the position in relation to Mr Jones' statement because I needed to give proper consideration to the extent to which allegations involving Miss Cox and individuals, which allegations had been withdrawn save insofar as they were part of the jealousy point, should nevertheless be available for inspection. I indicated that it would certainly not be the case that the whole of Mr Jones' witness statement would be withheld but consideration...

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