Court of Appeal confirms that “exceptional circumstances” are required for cross-examination on an affidavit pursuant to a Norwich Pharmacal Order

• United Kingdom

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

19-07-2021

Stokoe Partnership Solicitors v Grayson and others [2021] EWCA Civ 626

Facts of the Case

• In February we reported on the High Court’s decision in Stokoe Partnership Solicitors v Robinson and others [2020] EWHC 3312 (QB). For full details of that decision, see our previous update.
• By way of reminder of the factual background, in the context of the alleged illegal rendition, interrogation and torture of Karam Al Sadeq, and on whose behalf related proceedings were brought by the Claimant (“C”), the first and second Defendants (“D1” and “D2” respectively) had provided affidavits which contradicted each other on the question of whether D2 had asked D1 to obtain certain confidential information. C had 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”.
• At first instance, the High Court had refused C’s application on a number of grounds, principally because D2 was subject to ongoing proceedings brought by C which involved overlapping issues, and therefore to permit cross-examination at this stage would be to pre-empt cross-examination at trial.
• C appealed the High Court’s decision in relation to the cross-examination of D1.

The Court of Appeal’s Decision

• The Court of Appeal noted that CPR 32.7(1) provides that “where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence” and that the notes to the White Book make clear that such evidence may be in a statement of case, affidavit (as was the case here), a witness statement, a witness summary or an application notice.
• The Court of Appeal also observed that it appears to have been common ground at first instance and was on appeal that the Court may order such cross-examination whenever it is “just and convenient”. The Court of Appeal expressed some doubt as to whether this was the right test, given it is derived from s.37 of the Senior Courts Act 1981 which concerns the power of the High Court to grant an injunction (as opposed to an NPO).
• In any event, the Court of Appeal noted that the phrase does not imply infinite discretion, but rather a discretion that must be exercised “in accordance with established principles”, and these include that cross-examination of an opposing party is generally not permitted, other than at trial where that party has chosen to give evidence.
• The Court was also unpersuaded by the argument that a party automatically opens itself up to cross-examination by consenting to provide disclosure by means of an affidavit, or the protection which the concession by C, that it would undertake not to use at trial any of the material obtained in cross-examination, would in practice afford.
• The Court of Appeal accordingly unanimously dismissed the appeal.

Comment

• In arriving at its judgment, the Court of Appeal considered the handful of cases where cross-examination has been ordered on an affidavit sworn pursuant to a disclosure order in the NPO jurisdiction. However it distinguished them on the basis that cross-examination was not in those cases ordered solely to enforce a disclosure affidavit, but on a basis which was analogous to the two recognised exceptions to the rule against permitting the examination of an opposing party except at trial, namely:
  
  
  • examination of a judgment debtor; and
  • cross-examination on an affidavit sworn in answer to an application for a freezing injunction containing an order for disclosure of the whereabouts of the assets,

   both of which ultimately go to the issue of enforcement of judgments.

• It is also noteworthy that in the present case an alternative was open to the applicant in the form of an application for further information under CPR 18, which the Court of Appeal observed had moved C’s case forward. 

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