In Invest Bank v El-Husseini, the Bank has sued eight defendants under section 423 of the Insolvency Act 1986. A 4-week trial of the claim commenced in the Commercial Court on 2 July 2024.
On Day 6 of the trial, the Court heard an application by the Bank for relief from sanctions in respect of a notice to prove served two weeks after the deadline in CPR 32.19. The notice to prove concerned a Divorce Agreement disclosed by the Sixth Defendant, which was stated on the face of the document to have been executed on 26 August 2017. The Bank wished to put D6 to proof as to the date of execution of this document.
CPR 32.19 provides that a party shall be deemed to admit the authenticity of a disclosed document unless he serves notice that he wishes the document to be proved at trial. The deadline for serving such a notice is the ‘latest date for serving witness statements’ or within 7 days of disclosure of the document, whichever is later: CPR 32.19(2)(a).
In this case, it was common ground that the original deadline was 1 March 2024, which was the latest date for witness statements. No notice to prove was served on that date in respect of the Divorce Agreement, but the Bank served a late notice on 14 March 2024. However, at the PTR, Bryan J gave permission for supplemental witness statements to be served by 17 June 2024.
The Bank’s first contention was that relief from sanctions was not required because the ‘latest date for serving witness statements’ is the date by which supplemental statements, if permitted, are to be served, such that the notice served on 14 March 2024, although out of time by reference to the original deadline, was in time for the purposes of CPR 32.19(2)(a).
Calver J rejected this contention. He observed that while CPR 32.19 is ‘poorly worded (and requires consideration by the rules committee)…it simply means “by the latest date for serving the primary witness statements”, not supplemental witness statements’.
That meant that the Bank required relief from sanctions, which was refused for a number of reasons. The most fundamental of these was that the grant of relief would serve no useful purpose. This was because challenging the date of execution of a document constitutes an allegation of forgery as a matter of law, which cannot be advanced unless it is properly pleaded: see paras 24-26, referring to Eco3 Capital Ltd v Ludsin Overseas Ltd [2013] EWCA Civ 413, [105] and to the Forgery and Counterfeiting Act 1981, section 9.
This Bank’s application for relief from sanctions was accordingly dismissed with costs.
The judgment is available here.
Niranjan Venkatesan and Constantine Fraser acted for the successful defendant, instructed by Debenhams Ottaway LLP.
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