A Verjee v N Miller
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MANN |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] EWHC 2388 (Ch) |
| Court | Chancery Division |
| Docket Number | GLC/179/04 |
| Date | 30 July 2004 |
[2004] EWHC 2388 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Mann
GLC/179/04
MR BOARDMAN appeared on behalf of the CLAIMANT
MR TAMLIN appeared on behalf of the DEFENDANT
This is an appeal from an order of Registrar Simmons made on 24th May 2004 in which he struck out the two claims, which, after consolidation, make up the present claims, for non-compliance with an unless order for disclosure. I will describe the nature of the claim very shortly, but only shortly because its details do not matter for the purposes of the hearing before me.
Mr Verjee, applicant or claimant in both the claims which make up these consolidated proceedings, claims 15 per cent of the increase in value of a hotel called the Oki Hotel, which is owned by Dewrun Limited, the increase in value being over a specific figure. That company was wound up on 9th February 2000 and the resistance to his claim is now being conducted by the liquidator. There are various defences to that claim, not least the fact that there is no agreement entitling Mr Verjee to the increase, and various important and significant attacks have been made on the validity of at least some of the documents said to underlie the claim. The claim is made all the more difficult by the fact that some of the documents said to found it are apparently documents involving parties other than Mr Verjee and/or Dewrun. I need say no more about the nature of the claim than that, save that I will have to refer at one stage to an option which forms part of the history.
In order to pursue his claim Mr Verjee proved, his proof being verified by an affidavit sworn on 8th March 2001. In that proof he relied on a declaration, dated 2nd September 1999, and a prior agreement, dated 21st July 1998, each of which were said to be documents which justified his claim. The later of those documents in time, that is the 1999 document, eventually transpired to be a document which was not contemporaneous, but which was produced by Mr Verjee for the purposes of these proceedings. On 11th September 2002 the liquidator rejected that proof and on 4th October 2002 Mr Verjee appealed from that rejection, and those constituted his first set of proceedings.
The proceedings came before Park J for directions on 23rd October 2003 and he made an order for the delivery of statements of case in the application, so that the issues could be decided: Particulars of Claim by 13th November; the Defence by 11th December, and disclosure by lists on 7th January 2003. I emphasise the disclosure by lists because it is the disclosure obligation which lies at the heart of the matter before me. On 13th November Particulars of Claim were served. There were then some further documents which do not matter for these purposes. Disclosure did not take place on the date specified.
Mr Verjee, having considered the position, seems to have considered that he needed to start a second set of proceedings. The existing appeal from the rejection of the proof would be appropriate for asserting or having determined his claim so far as it was a monetary claim in respect of which he sought to prove. However, he also sought to make a proprietary claim. He considered, no doubt rightly, that that required a separate set of proceedings. He applied to the Court for permission to bring such proceedings, and on 24th January 2003 the application came before Hart J. He gave permission for Mr Verjee to issue a claim form against Dewrun claiming, effectively, proprietary relief mirroring the claim already made. He extended the time for filing a Defence to 6th March 2003 and he made an order consolidating the two sets of proceedings. Since that date they have, for all material purposes, been run together. As I have said, disclosure in the first set had not taken place despite Park J's order. Hart's J order extended the time by list to 3rd April 2003. The claim form pursuant to Hart's J order was issued on 10th March 2003.
At this point I need to say a little more about the issues in this action and the way in which they are presented and the material which is said to underpin the claims. Mr Verjee has put forward his claim on what is said to be a shifting basis. First, it was on the basis of the 1999 document to which I have already referred, and then when it was discovered that that document was not contemporaneous but was said to have been generated for the purposes of these proceedings the claim shifted to a transaction in 1998, which is said to have formalised an earlier oral agreement.
Then it is said to have had its origins in 1995 with an oral variation of that 1995 agreement in 199The 1995 agreements are said to have involved two of Mr Verjee's companies, namely London Hotel Management Services Limited and Collier Company Limited. These agreements and their alleged interaction are complex and the details do not matter for the purposes of this appeal. What is relevant, or what may be relevant, is that companies of Mr Verjee were involved in the transaction and that one of the documents arising in 1995 granted an option to Collier Company Limited to purchase 15 per cent of the holding company of the company which in fact owned the relevant hotel. The relevance of the option will become apparent in due course.
I now resume the chronology. On 15th May 2003, the consolidated claim was restored to Registrar Derrett who made various orders, including an extension for the time for disclosure by list to 3rd June 2003. This time the order was complied with, although not timeously as far as Mr Verjee was concerned. The liquidator served his list on 3rd June 2003. Absolutely nothing turns on that. Mr Verjee served his on 9th June 2003, which is six days late. The list contains effectively two sets of pieces of paper. The first is a form in a standard form with which one is familiar which cross refers to schedules. The second set is the schedules themselves. The disclosure statement in the list of Mr Verjee says this so far as relevant to the matter before me:
"I state that I have carried out a reasonable and proportionate search to locate all documents which I am required to disclose under the order made by the Court on 23rd October 2003, as varied. I did not search for documents:
1. pre-dating August 1995;
2. located elsewhere other than in my office and my home;
3. in categories other than those relevant to the issues in the proceedings."
He then discloses documents by reference to two schedules. Schedule A describe documents in respect of which inspection is not opposed, and Schedule B describes generally some documents in respect of which privilege is claimed and then there is the usual reference to documents which he no longer has in his control.
The number of categories of documents or documents in question numbered about 25. That list is said to be deficient. It is said, as is described in the proceedings before me, to have been late, which is true, to contain no reference to documents in the control of Mr Verjee's companies and to contain no reference to documents relating to his financial ability to exercise the option that I have referred to, and no documents dealing with an issue as to repossession of his house, which arose on the pleadings, again a point to which I shall come. And it is also said there is no reference to a search having been carried out at his solicitors' offices. The solicitors in question are Messrs Evans Dodd who have acted for Mr Verjee throughout these proceedings and who have acted for him in the past in relation to matters which it is not possible to itemise completely.
Those are the complaints about the list that are articulated now. They are not formalised in any Court document, they were not formalised in any application, and they were not even formalised in the form of any witness statement or in any skeleton argument which was put before the Court in the various hearings in respect of which disclosure was debated, considered and ruled on in the future. Nor are they complained about in anything in the form of a witness statement from the liquidator.
There was, however, a letter of 22nd August 2003 which was sent from Moon Beever acting for the liquidator to Mr Stott, the partner in charge of this matter at Evans Dodd, which refers to the list of documents and refers to the fact that the search has been limited to Mr Verjee's office and home. It says that in Moon Beever's view Evans Dodd must still retain files in relation to matters undertaken for Dewrun Ltd or other companies, and they said they would be grateful if they would disclose or deliver up certain files described in a general way. It is also right to point out that there was a complaint about the quality of the discovery in no great detail, and certainly not containing the details which I have referred to, sent on 9th September 2003.
On 12th September 2003 the directions hearings for these applications were restored in front of Registrar Derrett. There is obviously some debate as to the quality of disclosure and what to do about it at that hearing, but it took place without the benefit of any crystallisation in any witness statement or application notice. That is true of practically every application that has ever been made in this case. I have been given some information as to what happened by Mr Boardman who appeared before me and who appeared in all the relevant applications, and I of course accept his description of what went on at those proceedings. However, I should say at this stage it is not a particularly satisfactory way of trying to...
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