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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Tibbs v Tibbs & Anor [2020] EWHC 1853 (Ch) (19 February 2020) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2020/1853.html Cite as: [2020] EWHC 1853 (Ch) |
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
PROPERTY TRUST AND PROBATE LIST (ChD)
Fetter Lane London, EC4A 1NL |
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B e f o r e :
____________________
MR JOHN TIBBS | Claimant | |
- and - | ||
(1) MR ROBERT TIBBS | ||
(2) MS ANN LESLEY TIBBS | Defendants |
____________________
MR P. WILLIAMS (instructed by Sanders Witherspoon LLP) appeared on behalf of the Defendants.
____________________
Crown Copyright ©
"Permission to rely upon the third witness statement of Jason Fernando and the documents exhibited, namely, the signed facility letter and all-moneys charge."
The deponent is Mr Ferrando, not Fernando. The application continues:
"The defendants in this matter have again raised the issue as to disclosure of the signed facility letter and all-moneys legal charge upon which Tower Bridging Limited made the initial loans to the claimant. Copies of the partially-signed documents have been located from historic emails held by Jason Fernando which have been forwarded to me. I have produced a witness statement to be signed by Jason Fernando exhibiting the documents. The court is aware that Jason Fernando has produced witness statements and an affidavit confirming that these documents were indeed signed. His third witness statement corroborates those statements. I am not attempting to introduce documents that have not been previously disclosed but merely the executed page."
That is signed by Mr Adrian Charles Gillan, a consultant solicitor with the claimant's solicitors.
"I was informed that the defendants again state that they do not believe the documents existed when the initial loan was made. The court will be aware that I have already stated that if the documentation had not been executed, no moneys would have been advanced and no charge could have been secured upon the property owned by John and the late Maureen Tibbs."
Paragraph 4:
"I informed Adrian Gillan the documents would have certainly existed and would possibly now have been archived by the solicitors. I cannot now recall if I had been requested to obtain the originals but have not done so. I was asked, however, if signed copies would have been forwarded to me. I searched my emails for the relevant period and can confirm that solicitors acting on behalf of TBL had forwarded to me emails from the solicitors acting for both John and the late Maureen Tibbs in which they attached a copy of the facility letter and legal charge that had been duly signed. I would not add my signature to those."
Then he says,
"I accept these are only signed by John and the late Maureen Tibbs, but can confirm that our solicitors would have signed the documents on our behalf as set out above."
The statement in front of me is unsigned, but I am told that the original was signed by Mr Ferrando at about 9.45 this morning.
"By 4 p.m. on 20 September 2018, parties must give to each other standard disclosure of documents by list of category limited to issues 3(b) to (e) referred to in para.3 above."
The point is that it goes to the very basis of this claim in terms of moneys lent and interest due.
9 Mr Hardman referred me to the decision in Andrew Ian McTear & Another v. Engelhard & Ors [2016] EWCA Civ 487, where the Court of Appeal, when faced with an appeal in respect of an application to a judge to dismiss a second application concerning new documents, set out their approach at paras.45 to 49. In particular, from para.45, Vos LJ (as he then was) said:"The defendants ought, as I have said, to have made the new documents available to the claimants as soon as they were found.Then he said,
"It is, I think, rather less clear that they needed to seek an extension of time for the service of the new list, since the documents concerned were not disclosed in response to Master Bowles's order of 24th January 2014 requiring disclosure relating to the original amendments."
I interject there to say that there is obviously a substantial difference, because that related to amendments to a claim as opposed to here. He continues at para.45:
"The documents ought anyway to have been disclosed in the original list, but it is not as if the defendants failed to serve any list in response to the original order. All they failed to do was to include some documents in their possession which they had not then found."
Then at para.47:
"The judge relied on CPR Part 31.21 which only provides that a 'party may not rely on any document which he fails to disclose … unless the court gives permission', but by the time of the hearing the defendants had not failed to disclose the new documents; they had served a list in respect of them.
48. The question, therefore, is whether the judge was right to treat the application in relation to the new documents as purely one for relief from sanctions. I do not think that he was. The important question was whether, in all the circumstances, the defendants were to be permitted to rely upon them at the forthcoming trial. That depended, amongst other things, on considerations including whether the claimants would have wished to rely on them, the circumstances in which they had not been disclosed before, and their relevance to the issues.
49. I accept also that the failure to produce the documents at the initial disclosure stage was a significant breach. Parties must take seriously the need to conduct proper searches for documents in response to an order for standard disclosure by a fixed date. But here there was an excuse … The documents had been thought to have been destroyed, but were discovered when new counsel emphasised the need to look for them. "