Skeleton
THE PLAINTIFF (1) The Plaintiff seeks by way of
primary relief an Order striking out the Second
Defendant's Defence, and debarring her from giving
evidence without the leave of the Trial Judge, with
liberty to the Plaintiff to set the action down for
trial on the evidence of the Plaintiff and the
First Defendant alone. (2) The ground for the Plaintiff's application
is that the Second Defendant has suppressed highly
material discovery for over a year, and sworn a
false affidavit purporting to verify a seriously
defective list. (3) The Court has power to grant the relief
sought under RSC Order 24, rule 16. While generally
an affidavit purporting to verify a list of
documents is conclusive at an interlocutory stage
Stuart-Smith LJ found that there is an
exception to that rule if a "...breach could be
ascertained from the party's own documents,
affidavits or pleadings" (in Lonrho plc v.
Fayed (No. 3) (1993) The Times, 24th June at
page 349). (4) Mance J reviewed the authorities on
Order 24, rule 16 in Cepheus Shipping
Corporation v. GRE Assurance PLC; The Capricorn
[1995] 1 Lloyd's Reports 622 at 642
et seq. The Plaintiff submits that the following
propositions emerge from Mance J's review of the
authorities. The general rule, laid down by
Millett J (as he then was) in Logicrose
Ltd v. Southend United Football Club Ltd (1988)
The Times, 5th March is that "Once a missing
document had been produced, an action ought to be
dismissed only if, despite its production, there
remains a real risk that justice cannot be done"
(per Mance J in Cepheus Shipping Corporation v.
GRE Assurance PLC; The Capricorn [1995]
1 Lloyd's Reports 622 at 645). (5) There is an important exception to that
rule, to be found in a dictum of Lloyd LJ
(as he then was), delivering the judgment of the
Court of Appeal in Landauer Limited v. Comins
& Co (1991) The Times Law Reports, 7th
August at page 382: "His Lordship could imagine
cases of contumacious conduct, such as the
deliberate suppression of a document, which might
justify the striking out, on the analogy of
striking out for want of prosecution, even if a
fair trial were still possible." (6) The Plaintiff concedes that those remarks by
Lloyd LJ are strictly obiter, but submits that they
should carry great weight with the Court, as the
considered view of a distinguished judge, since
raised to the House of Lords. Moreover, Mance J
accepted them as correctly stating the law when
reviewing Landauer Limited v. Comins & Co
(1991) The Times Law Reports, 7th August in Cepheus
Shipping Corporation v. GRE Assurance PLC; The
Capricorn [1995] 1 Lloyd's Reports. (7) It is submitted that the Second Defendant's
conduct in this matter is plainly contumacious, and
that there can be no excuse for swearing an
Affidavit purportedly verifying a list of documents
(especially after the Plaintiff had repeatedly
urged reflection upon the Second Defendant's
solicitors) from which documents so material to the
issues in the action had been omitted. (8) It is further submitted that in such
circumstances the Court should not readily be
convinced that a fair trial is still possible, at
any rate between the Plaintiff and the Second
Defendant. The failure to disclose material
evidence should arouse the vigilance and suspicion
of the Court as to the Second Defendant's approach
to discovery generally. (9) If the Court is minded (contrary to the
Plaintiff's primary case for which he will contend
in the strongest terms) to afford the Second
Defendant an opportunity to remedy her default,
then RSC Order 24, rule 7 (2) is in point. (10) Were the Court to refuse the Plaintiff the
primary relief which he seeks, it is submitted that
not only should the Second Defendant be ordered to
make and serve a Further & Better List, but
also that her solicitor, Anthony Julius, as
the partner in the firm of Mishcon de Reya, should
file an Affidavit verifying such list. (11) The responsibility on a solicitor to ensure
that his client properly understands and discharges
her discovery obligation is heavy. The swearing of
so seriously defective an affidavit is prima facie
evidence of a culpable dereliction of such duty.
The Second Defendant's oath has been devalued by
the defaults which have come to light. In the
circumstances it is submitted that, if not minded
to make an order striking out the Second
Defendant's defence forthwith, the Court should at
least make an order requiring Mr Julius, as the
partner with the conduct of the matter on the
Second Defendant's behalf, to verify her list on
his affidavit. (12) This is a discrete application rendered
necessary by the Second Defendant's serious
default. It is accordingly submitted that the
appropriate costs order would be Plaintiff's costs
in any event, to be taxed forthwith on an indemnity
basis. David Irving Friday, April 23, 1999 | 
