[2015] EWHC 3004 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
Mrs Justice Whipple
Case No: TLQ/15/0035
Mr Tabari (instructed by Wragge, Lawrence, Graham & Co LLP) for the Claimant
Mr David Rosen (representing Darlingtons Solicitors) for the Defendant
Hearing dates: 20–21 October 2015
Mrs Justice WhippleINTRODUCTION
1
I have before me a claim brought by American Express Services Europe Ltd (the Claimant) against Talib Jafar K Al-Shabrakah (the Defendant).
2
The Claimant contends that the Defendant owes it substantial amounts in unpaid American Express bills together with interest.
3
The Defendant disputes the debt on a number of bases which I will shortly come to. But first I must address a number of preliminary issues.
PRELIMINARY ISSUES
Application to vacate trial
4
By application notice dated 15 October 2015, the Defendant applied to vacate the trial date. That application was made just one working day before the trial window which commenced on 19 October 2015. That application was heard by Blake J on Friday 16 October 2015, and not surprisingly, he adjourned the application to the trial judge. The application was renewed before me at the outset of the trial, and I refused the application and said I would give reasons later. These are my reasons.
5
The Defendant's application notice was supported by the witness statement of David Rosen, solicitor for the Defendant, dated 15 October 2015, and his exhibited materials.
6
The Claimant resisted the application and has filed a witness statement dated 16 October 2015, together with exhibited materials.
7
The power to vacate is within CPR 3.1, and must be exercised consistently with the overriding objective. If I refused this application to vacate, the trial would go ahead without the Defendant being present in person (although he was represented by Mr Rosen). That would engage CPR 39.3, which would enable me to continue the trial in the absence of a party; give me power to strike out his defence or counterclaim; and enable the Defendant to make an application to set aside any judgment I may give against him. The provisions of Practice Direction 39A, para 2 are relevant also.
8
The main basis for seeking to vacate was that the Defendant was said to be unfit to attend trial or give directions to his representative. In support of this, Mr Rosen's witness statement exhibited a medical report dated 2 October 2015 from Dr Hamed Abdel-Wahab, Professor of Cardiology at the "Heart Care Clinic" (no further details were given, and I do not know what this clinic is or where it is). That doctor indicated that the Claimant had heart problems and had been recommended complete bed rest for three months "from today" (ie from 2 October 2015, the date of the report). There was an inconsistency in this report, because the advice to rest flowed from the date of the report, although the condition for which rest was recommended was said to have been identified some months ago.
9
On the first day of trial, 20 October 2015, Mr Rosen provided me with a fuller medical report from a different doctor, Doctor Ahmed El-Neklawi, a consultant physician, dated 18 October 2015. There is no address for Doctor El-Neklawi and it is unclear where he works. Dr El-Neklawi says that the Defendant was diagnosed with ischaemic cardiomyopathy back in 2014, alongside a number of other heart problems. The Defendant had been advised to travel to the US for possible correcting procedures but had not done so. On medical examination (it is not stated when that examination took place) certain signs of congestive heart failure were identified. The recommendation was for complete bed rest, and that corrective procedures (it is not stated what those procedures might be) abroad should be sought as soon as possible; yet it was said that the patient was unfit to travel (I question therefore how he was to get abroad for the proposed procedures). That doctor said that the Defendant was too weak to be able to give instructions or make decisions, that he should be medically evaluated after 3 months, and concluded that the Defendant was unfit to attend Court.
10
My main reason for refusing the application to vacate is that it is made far too late, without good reason for the lateness. It is quite clear that the Defendant's health problems, such as they may be – and I make no finding about them — have been ongoing for some considerable time. The latest medical report suggests that they were diagnosed in 2014. Notice of the trial date was given on 5 February 2015, for a 5 day trial to commence during a trial window which ran from 19 October 2015. There was no suggestion that the Defendant was too unwell to attend trial until the back end of last week. If the Defendant had health problems which might have interfered with his ability to attend trial, the Court (and the Claimant) should have been made aware of them much earlier.
11
To grant this application would mean that Court time would be wasted. It would mean that the Claimant's time would be wasted — the Claimant is here, represented by Counsel and solicitors. The Claimant's witness is here, and his time too would be wasted. Costs would be thrown away. It would mean that there would be a further delay in the matter being heard, bearing in mind that the claim relates to transactions which took place in 2012, already almost 3 years ago.
12
These reasons are sufficient to dispose of the Defendant's application. But there are other points to make, which lend support to my conclusion that the application must be refused.
13
First, the Defendant suggests that negotiations have been ongoing between the parties and that is why the application was not made until so late in the day. The fact that there may have been negotiations is plainly an inadequate excuse for the late application.
14
Secondly, the effect of refusing this application will be that the trial proceeds in the absence of the Defendant. But the Defendant has failed to take any part in the preparation for this trial over many months now. Most notably, the Defendant has yet to serve a witness statement. There were a number of directions for service of witness statements. The last order required service of the Defendant's witness statement by 8 May 2015: that was 5 months ago; yet no witness statement has been lodged, and no application has been made to extend time for service of such a statement. Without a witness statement served in compliance with Court rules, the ordinary rule would be that the Defendant would not have been in a position to offer this Court any oral evidence anyway, at least not without permission of the trial judge.
15
I infer from the Defendant's failure to file a witness statement, for which no proper explanation has been given, that he did not intend to take an active personal part in this trial anyway. His conduct in relation to this litigation has been unimpressive for many months now.
16
Mr Rosen says that the Defendant's absence will put Mr Rosen in difficulty in obtaining instructions. But Mr Rosen remains on the record. It is not for me to enquire as to the source and adequacy of Mr Rosen's instructions, but he is plainly satisfied that he is able to be here and to present the Defendant's case; and that he has instructions to do so. I accept that Mr Rosen may have been in difficulty in taking instructions on detailed points arising during the course of the trial, but the issues in this trial are familiar from the pleadings filed years ago, and Mr Rosen has plainly had the opportunity to take instructions on them in the past. Any difficulty he may now face is an insufficient reason to vacate the trial.
17
Finally, and in any event, there is no clarity at all about what length of time might be needed before this trial could resume. If the medical evidence is to be believed (and I express no view on that either way), then the Defendant is not going to get better in the near future, or be able to attend trial if it is re-fixed. It is not clear what purpose an adjournment would serve, other than to delay this trial further and create uncertainty for both parties.
18
For those reasons, I dismiss the application to vacate the trial.
Defendant's Application re hearsay evidence
19
The second preliminary matter relates to two notices dated 6 October 2015 in which the Claimant gave notice that it intended to rely on the witness statements of Mr Al Hamoud (who is elsewhere referred to as Abdul Sammad) and Mr Al-Tayyar, as hearsay. Both individuals have provided witness statements to the Court. Both of them are resident (and physically present) in Saudi Arabia. I have no power to compel them to attend this trial, in person or by video-link. I will refer to them as the Saudi witnesses.
20
The Defendant opposed the application to rely on their evidence in written form, and in the alternative sought an order that he should be entitled to cross examine those witnesses pursuant to CPR 33.4.
21
The rules permit the Claimant to serve the Notices as it has done. Section 2 of the Civil Evidence Act 1995 applies, and the notices comply with the requirements of CPR 33.2, giving the reason for not calling the witnesses that they were not willing to attend trial despite every reasonable effort having been made to get them here. There is no basis for the Defendant to oppose the CEA notices. The Claimant is entitled to serve them, as Mr Rosen frankly accepted. The issue is one of the weight to be attached to...
