Ventures Food Ltd v Little Dessert Shop Limted
| Jurisdiction | England & Wales |
| Judge | Richard Williams |
| Judgment Date | 30 September 2022 |
| Neutral Citation | [2022] EWHC 2437 (Ch) |
| Docket Number | Claim No: BL-2021-BHM-000012 |
| Court | Chancery Division |
[2022] EWHC 2437 (Ch)
HIS HONOUR Judge Richard Williams
(Sitting as a High Court Judge)
Claim No: BL-2021-BHM-000012
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
BUSINESS LIST (ChD)
Priory Courts
33 Bull Street
Birmingham, B4 6DS
Nicholas Pilsbury (instructed by HMA Law Solicitors) for the Claimant
Martin Budworth (Direct Access) for the Third Parties
Hearing date: 26 July 2022
Introduction
This is my judgment following the remote hearing of an application dated 12 May 2022 made on behalf of Little Dessert Shop Limited (“ D”) for an order for costs against Messrs Muhammad Khuram Shahzad Afzal (“ TP1”) and Abdul Naveed Afzal (“ TP2”) (together “ the Third Parties”) pursuant to section 51 of the Senior Courts Act 1981 (“ the 1981 Act”) and Civil Procedure Rules (“ CPR”) r.46.2.
Background
Messrs Muazzam Ali and Mohammad Chohan (“ MC”) are the co-directors and co-owners of D, which together with its associated company, Little Dessert Shop (Holdings) Limited, is in the business of franchising Little Dessert Shops.
Ventures Food Limited (“ C”) was incorporated on 12 December 2017 as the corporate vehicle through which the franchise of a Little Dessert Shop was to be operated. TP1 was the sole registered director and shareholder of C. TP1 and TP2 are brothers.
D, as tenant, entered into a lease dated 17 January 2018 (“ the Lease”) of premises at 1 and 1a Bore Street, Lichfield (“ the Premises”). Thereafter, the Premises were occupied by C pursuant to a franchise agreement with D, which was terminated in September 2020, although C continued in occupation of the Premises.
Proceedings were issued in October 2020 whereby C sought a declaration that D held the Lease on trust for C under an express trust evidenced by an email from MC, on behalf of D, to TP1, on behalf of C, and timed at 11:20 on 15 December 2017 in which it was stated that:
“The money needs to come from my account as I have just spoken to her even though the lease is being secured on your behalf.
[Account Details]
Please let me know once you have transferred the amount requested so I can pay and it's too late to change the name on the lease but we can always make this change after in to your name.”
D's Defence stated that C's “version of the e-mail dated 15 December 2017 is disputed and the Claimant is put to strict proof that this e-mail is genuine…The Defendant seeks to rely upon its version of the e-mail which is set out as Appendix C.” D's version of the disputed email stated:
“The money needs to come from my account as I have just spoken to her:
[Account Details]
Please let me know once you have transferred the amount requested.”
By its Reply, C contended that:
“7.1 The version of the email relied upon by the Defendant has been altered.
7.2 Given that (i) the Defendant's Mr Chohan was a party to the email, and (ii) the effect of the alteration is to render a document which in its original form is damaging to the Defendant's case less damaging to that case, the obvious inference is that the email was altered by or on behalf of the Defendant and that knowledge of the alteration is to be attributed to the Defendant.
7.3 The Defendant's actions in knowingly putting forward an altered email in support of it's position are dishonest, and amount to an abuse of process, with the consequence that the Defence should be struck out.”
Unsurprisingly, C and D were each given permission to rely upon expert evidence in the field of computer science “concerning the question of whether the versions of the email dated 15 December 2017 disclosed by the parties are authentic and free of any manipulation”. The case management order dated 13 May 2021 further provided that “A joint statement by the experts setting out areas of agreement and disagreement between the experts is to be prepared and filed by 22 October 2021…In the event that the experts are unable to reach agreement concerning their evidence, the experts shall attend trial to give evidence orally.”
C served the expert report of Mr Joseph Naghdi dated 1 December 2021 in which he concluded that D's version of the disputed email “was modified well after it was sent” and C's version of the email “is a genuine, untampered email. There is no evidence that… the email has been modified in any shape or form.”
D served the expert report of Mr Abid Rashid dated 3 December 2021 in which he concluded that D's “version of the disputed email is genuine and there is no evidence that I have seen, which suggests, that it has been manipulated or altered in any way since 15 December 2017….I believe that [C's] version of the disputed email has been manipulated”.
By an application notice dated 10 January 2022, Mr Mark Summerfield, C's solicitor, sought:
“An Order pursuant to CPR42.3 that Solomon Taylor & Shaw has ceased to act for the Claimant and that the name of Solomon Taylor & Shaw be removed from the Court record, because the Claimant has failed to give instructions for over 4 weeks, to pay fees and disbursements and is no longer responding to telephone calls or emails. The trial is due to begin on March 22nd.”
By order dated 18 January 2022, Solomon Taylor & Shaw (“ STS”) were removed from the Court record as solicitors for C in the main action.
By an application notice dated 28 January 2022, D sought an order inter alia:
a. Setting aside permission for C to rely upon expert evidence, since Mr Naghdi had repeatedly informed Mr Rashid that he was without instructions and so unable to progress the preparation of the joint statement; and
b. Granting permission for D to bring a Counterclaim seeking a declaration that C was in occupation of the Premises pursuant to a contractual licence, which had been terminated.
The application was listed for hearing before me at the Pre-Trial Review on 4 February 2022. C failed to attend and was not represented at that hearing.
At the PTR hearing I made the following order:
“UPON the Pre-Trial Review AND UPON the Defendant's Application dated 28 January 2022
AND UPON hearing Counsel for the Defendant and the Claimant neither attending nor being represented.
AND UPON the Court being satisfied that the Claimant was aware of this PTR and no explanation has been received as to why the Claimant is not in attendance.
AND UPON the Court noting that should the Claimant fail to attend trial, the Claimant is at risk of its claim being struck out and any defence to counterclaim being struck our pursuant to CPR 39.3.
IT IS ORDERED:
1. The Claimant having failed to give instructions to their expert to prepare a joint statement as required by the Order of DJ Murch dated 13 May 2021, the Claimant does not have permission to adduce expert evidence at trial in the field of forensic computer science.
2. The Claimant shall, by 4pm on 18 February 2022, notify the Defendant's solicitors as to whether they require the Defendant's expert to attend trial to be cross-examined on his report. In the event that the Claimant fails to so notify the Defendant's solicitors, the Defendant's expert shall not be required to attend trial. If the Claimant requires the Defendant's expert to attend trial, then the Defendant's expert shall attend remotely.
3. By 4pm on 11 February 2021, the Claimant shall provide to the Defendant's solicitors a copy of the lease which is referred to in paragraph 29(2) of Mr Muhammad Khuram Afzal's statement dated 10 September 2021 and / or paragraph 39 of Naveed Afzal's statement dated 10 September 2021.
4. The Defendant has permission to file and serve a Counterclaim in the form attached to the witness statement of Mohammed Afzal dated 28 January 2022 by 4pm on 8 February 2022. The Defendant shall pay the relevant fee for the Counterclaim by the same date.
5. The Claimant may file and serve a Defence to the Counterclaim by 4pm on 15 February 2022, but if the Claimant chooses not to do so, the Claimant shall be deemed to defend the Counterclaim on the basis of the facts and matters pleaded in the Particulars of Claim.
6. The Order of DJ Murch dated 13 May 2021 is amended as follows:
6.1. Paragraph 16 is amended such that, at least 3 weeks before trial, it shall be the Defendant who must serve on the Claimant a trial bundle comprising fully functioning, indexed, paginated and externally identified lever arch files not exceeding 300 pages each.
6.2. Paragraph 17 is amended such that, at least 7 clear days before the date fixed for trial, the Defendant must file the trial bundle with the Court.
7. The Defendant's solicitors shall file and serve an amended trial plan by 4pm on 11 February 2022. The trial plan shall indicate that 8 people will be in attendance at the trial.
8. This Order shall be served by the Court. Upon service by the Court, the Defendant's solicitors shall promptly send a copy of this Order to the email addresses that it holds for Mr Naveed Afzal and Mr Muhammad Khuram Shahzad Afzal. The Defendant's solicitors shall also send a copy of this Order to the Claimant at 1 and 1A Bore Street, Staffordshire, WS13 6SJ.
9. Costs in the Case.”
By application dated 14 March 2022 and made without notice to D, C sought a stay of the proceedings for a period of 1 month in order to settle the case outside of court. Without a hearing, I dismissed the application by order dated 17 March 2022, which recorded that the reason for doing so was because the “parties have already had ample opportunity to settle the case outside court. The trial is listed for hearing to commence on 22 March 2022.”
The trial commenced on 22 March 2022 with a time estimate of 4 days. However, again C failed to attend and was not represented such that the trial concluded on the first day. I gave an ex tempore...
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