John Lawrence Monks v National Westminster Bank Plc
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Simon Barker |
| Judgment Date | 15 April 2015 |
| Neutral Citation | [2015] EWHC 1172 (Ch) |
| Date | 15 April 2015 |
| Court | Chancery Division |
| Docket Number | No. B30BM010 |
[2015] EWHC 1172 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
33 Bull Street
Birmingham B4 6DS
His Honour Judge Simon Baker QC
(sitting as a Judge of the High Court)
No. B30BM010
Mr John Monks appeared in Person.
Miss Tetyana Nesterchuk instructed by Matthew Arnold & Baldwin LLP appeared on behalf of the Defendant.
His Honour Judge Simon Barker QC:
This is an application by National Westminster Bank Plc in proceedings begun in March 2013, that is more than two years ago. The application was issued by this court either on the eve of, or effectively shortly after, the Easter weekend this year, so either on 2 April or on 7 April 2015. The action is listed for trial next week, 2to 24 April 2015. The application is for an order (1) permitting NatWest to amend its defence, which is said to be dated 20 March 2013 (but is in fact dated 20 May 2013) in the form of a draft amended defence attached to the application, and (2) permitting NatWest to serve and rely at trial on a witness statement of a Mr. Jonathan Logan, which statement is dated 2 April 2015; and (3) if need be, granting for relief from sanctions. The evidence of Mr. Logan is a statement running to 27 pages to which there is an exhibit running to more than 220 pages; the exhibit comprises largely — if not entirely – undisclosed documents (including a 50 page schedule prepared by Mr Logan) which NatWest wishes to add to the trial documents. Mr Logan is not, at present, amongst the witnesses who have made statements for and are to be called by NatWest.
In the evidence filed in support of the application there is not even one word to explain why the evidence of Mr. Logan is prepared late, could not have been prepared earlier, and ought now, at this very late stage, to be permitted to be adduced at trial; nor is there even one word to explain why the defence, which has stood for almost two years, and has been the subject of a detailed reply, should be amended only 3 working days before the trial begins.
In this context the procedural chronology of this case is also significant. Pleadings had closed in early June 2013. The first case management hearing took place on 1 August 2013, at this hearing Mr Monks' claim was allocated to the multi-track, the court directed a stay for two months for the purpose of negotiations, and gave directions for disclosure by 11 November 2013, inspection by 25 November 2013, witness evidence by 17 January 2014, and a further case management hearing to take place on the first open date after 24 January 2014. On 18 March 2014, there was a further case management hearing at which directions were given for the NatWest's counterclaim, which included further directions for disclosure and witness evidence. On 18 July 2014, there was a yet further case management hearing at which a trial estimate of three days was given. On 28 October 2014, there was a further procedural hearing before Newey J at which the parties must have confirmed that the case was ready for listing for trial because Newey J increased the trial estimate from three days to four days. There was a fifth and final procedural hearing before His Honour Judge Cooke on 5 January this year, at which, and on the basis that no outstanding matters had been raised, Judge Cooke gave directions for the listing of the trial, and reminded the parties of their obligations to comply with the court's directions orders. So from 1 August 201through to 5 January 2015 NatWest maintained its case as it had been pleaded in May 201without a murmur of suggestion that anything was or might be amiss.
The changes that are sought have been helpfully summarised by Miss Nesterchuk, who appears for NatWest, in her skeleton argument and in her oral submissions. In relation to the defence the proposed amendments are as follows:
(1) at paragraph 18 NatWest seeks to raise a new case as to the effect of a 'product switch' between one mortgage and another mortgage taken out by the claimant, Mr. Monks, who appears as a litigant in person;
(2) at paragraph 18(a) there is a new allegation of a second product switch. This is said to arise from the discovery within NatWest — so I am told by Miss Nesterchuk, although this is not explained anywhere in the evidence — of undisclosed documents in the possession of both parties which had come to light and are disclosed by way, as I understand it, of inclusion in Mr. Logan's exhibit;
(3) at paragraph 42.2 there is a new point, which is based on 34 pages of documents included in Mr. Logan's exhibit which have not previously been disclosed by NatWest. They are, so I am told, at pages 283 to 317 of the hearing bundle. On the face of it they are copies of communications between NatWest and Mr Monks. Miss Nesterchuk says from the Bar, and again presumably on instructions because there is no evidence to this effect or to provide any alternative explanation, that these documents were not disclosed earlier because there had been inadequate searches by NatWest;
(4) paragraph 46 and paragraph 54 contain amendments which are entirely consequential on paragraph 18, and therefore stand or fall with the amendment proposed at paragraph 18, which raises, or seeks to raise, a new case as to the effect of the product switch;
(5) paragraph 57 raises a new factual point, which is based on what Miss Nesterchuk describes as documents found recently by NatWest;
(6) paragraph 64.1 and paragraph 64.2 are again, as with paragraphs 46 and 54, entirely consequential on paragraph 18.
The core of the submissions by Miss Nesterchuk is that what NatWest is now seeking to do is to correct factual errors and...
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