Global menu

Our global pages

Close

“Exceptional circumstances” required for cross-examination on Norwich Pharmacal affidavit

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management - Norwich Pharmacal Orders

08-02-2021

Stokoe Partnership Solicitors v Robinson and others [2020] EWHC 3312 (QB)

Facts of the Case

  • In the context of the alleged illegal rendition, interrogation and torture of Karam Al Sadeq and on whose behalf related proceedings were brought by C, D1 and D2 provided affidavits which contradicted each other on the question of whether D2 had asked D1 to obtain certain confidential information.
  • C therefore applied to cross-examine D1 and D2 in relation to their affidavits to “resolve the inconsistency in order to uncover the identity of the ultimate perpetrator of very grave wrongdoing”.

The Decision

  • C’s application in respect of D1 was refused by the court (Mr Justice William Davis) on the basis that
     
    • C’s argument that the “possibility” that D1 “has not revealed everything and given a fully truthful account cannot be discounted” could apply in almost every case;
    • C, having pleaded its case against D2 on the basis (i.e. truthfulness) of D1’s affidavit, could not rely on its inconsistency with D2’s to suggest D1 had not revealed everything; and
    • in view of correspondence exchanged subsequently between C and D1’s solicitors about the issues in respect of which the affidavit was sworn, it was difficult to see how anything more could be achieved by cross-examination. Rather, the application appeared to be a fishing expedition.
  • The Court also dismissed the application in respect of D2 on the grounds that:
     
    • D2 was subject to ongoing proceedings brought by C and to permit cross examination now would be to pre-empt cross-examination at trial;
    • the events on which it was proposed to cross examine D2 occurred some time ago and were limited in scope; and
    • unlike some of the asset tracing cases where cross examination had been ordered, there was not significant documentary material demonstrating the inadequacy or untruthfulness of the affidavit.

Analysis and practical advice

  • The statutory discretion to order cross-examination on an affidavit is broad and unfettered, and it may be ordered whenever the court considers it “just and convenient to do so” (the overarching test).
  • However, in the context of NPOs (like asset disclosure orders from which much of the case law in this area is derived) cross examination is very much the exception rather than the rule. This is because it entails an invasion of the defendant’s privacy, the use of court time and the expenditure of costs.
  • Whether it is therefore “just and convenient” will turn on inter alia
     
    • the nature of the wrong doing in respect of which the NPO was ordered;
    • whether cross examination is in fact an attempt to furnish evidence on issues to be resolved at trial, since that would give the claimant an unfair procedural advantage;
    • the extent to which there is documentary evidence which contradicts the affidavit in question; and
    • whether there are other avenues open to the claimant for obtaining the information sought, such as a Part 18 request for further information where proceedings are on foot.
  • It is also important to bear in mind that the court will be alive to attempts to seek cross examination for the purposes of furnishing material for contempt proceedings to be brought.

 

 

For more information, please contact: