Lavelle v Noble [2011] EWCA Civ 441

Case No B3 2010 0513[2011] EWCA Civ 441
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
HHJ HARRIS QC
8LV10035
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/04/2011
Before
LORD JUSTICE PILLLORD JUSTICE HOOPERLORD JUSTICE MUNBY
Between
(1) JAMES LAVELLE (A minor)Appellants(2) MEGAN LAVELLE (A minor)AppellantCERI NOBLERespondentsPHILIP LAWLESSRespondentLESLIE GIBBSRespondentDENNIS McCARTHYRespondentJEAN McCARTHYRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Mark James (instructed by BBH Solicitors) for AppellantsMr Augustus Ullstein QC (instructed by Le Port & Co) for Respondents.Hearing Hearing date: 24 th March 2011
Judgment
[1]The Appellants are the young children of Mr. Kevin Patrick Lavelle. In January 2010 James was seven years old (date of birth 11 June 2002) and Megan was six years old (date of birth 26 June 2003). Their litigation friend is their mother and the fiancée of Mr. Lavelle at the time of his death.[2]They appeal various rulings made by the trial judge, His Honour Judge Harris QC, at a trial of claims made against five defendants. The effect of the rulings was to exclude certain evidence. Following those rulings the judge dismissed the claims brought by the appellants against five defendants. It is not disputed that he was right to dismiss the claims upon the evidence which remained following the rulings.[3]On 24 June 2004 Mr. Lavelle was fatally injured in a fight that took place at ‘The Cricketers’ Arms’ public house in Middleton Road, Banbury, Oxfordshire. He died in the early hours of 25 June 2004. He was 29 years old.[4]The cause of his death was aspiration of the contents of the stomach resulting from two head injuries to the deceased inflicted by a heavy steel weight lifting bar belonging to the deceased.[5]The first three defendants (now respondents) were at the time contract workers working in the railway industry. They were staying at ‘The Cricketers’ Arms’, as were the deceased and his friend, Mr. Mark Kirk. The public house had a ground floor where the bars were situated. On the first floor were rooms for the guests staying in the public house and a bathroom which (so it appears) served all the guests. On the second floor were bedrooms, one of which, No. 8, was occupied by the deceased and Mr Kirk.[6]It was common ground that the deceased died in the course of a fight involving him, Mr Kirk and some, or all, of the first three respondents.[7]The first respondent, who was arrested at the scene for murder wearing the clothes which he had worn that evening, was tried at the Crown Court for the murder of Mr. Lavelle and was acquitted at the close of the prosecution case by the jury on the judge’s direction. Central to the case against the first respondent was, so it appears, the evidence of Mr Kirk. The second and third respondents were not tried for any offence arising out of the incident.[8]In January 2008 the appellants issued a claim form against the three Welshmen, namely Ceri Noble, Philip Lawless and Leslie Gibbs, respectively the first, second and third defendants. The claim form also named the publican and his wife as the fourth and fifth defendants. The appellants have not appealed against the conclusions of the trial judge in favour of the publican and his wife.[9]In late March 2009 following a coroner’s inquest a verdict of unlawful killing was entered. The three defendants and Mr Kirk gave evidence at the inquest.[10]Following the inquest amended particulars of claim were in July 2009 drafted and served by the then solicitors for the appellants, BBH Solicitors. It appears that the amendments were made to reflect some of the evidence given at the inquest and, in particular, evidence given by the three defendants.[11]After a description of events leading up to the incident, in paragraph 6 of the amended particulars of claim it was alleged that the first three defendants, in the first of two incidents, entered room No. 8 and assaulted the deceased.[12]In paragraph 7 it was alleged that a second and separate assault was inflicted by the first three defendants during which they caused the deceased’s violent death. The July 2009 amendment added: A metal dumb-bell bar with threaded ends was used as a weapon on the deceased’s head to inflict the fatal wounds. The third defendant was seen to have held it.[13]Paragraph 8 reads: During such the second assault and battery, the 1st , 2nd and 3rd Defendant [Leslie Gibbs] falsely imprisoned the deceased in order that he was rendered defenceless to theirthe violent blows. The third Defendant subsequently said ‘I’ve killed him, I’ve killed him.’[14]In paragraphs 9 and 10 it was alleged that the deceased had suffered a number of injuries, including to the head. The pathologist’s report was annexed to the particulars of claim. There was no dispute about the accuracy and reliability of this report.[15]It is not necessary for the purposes of the appeal to set out the pleadings served by the three defendants the effect of which was individually to deny the allegation of responsibility for the death.[16]There were three case management hearings in September 2008, in April 2009 and in September 2009.[17]I move forward to the 20 January 2010 when there was a pre-trial hearing before HHJ Harris. The trial was due to start 5 days later, on Monday 25 January. At that hearing Mr Askey counsel for the appellants sought and was granted permission to use the transcripts of the defendants’ evidence at the inquest in order to cross-examine them. Mr Askey appears (wrongly as it turned out) to have been thinking that the defendants would give evidence.[18]On that date a trial bundle was agreed which included, amongst other things, a witness statement of Mr Kirk dated 20 August 2009. That statement was taken after the amended particulars of claim. The bundle also included a statement from the first defendant, Mr Noble, and the unchallenged pathologist’s report.[19]In a bundle which was not agreed was, amongst other things, a “Schedule of DNA results”, as well as other material which had come into existence for the criminal proceedings against Mr Noble.[20]At the trial Mr Noble was represented by Mr Leport. The second defendant was not present. The third defendant was present for some of the time.[21]On the first day of the trial Mr Askey accepted in response to a question from the judge that there was “no scope for joint enterprise in civil proceedings.” Loyal to that answer, Mr James who appears for the appellants on the appeal, accepted that he could not put the case as one of joint enterprise. The effect of Mr Askey’s concession was that, contrary to the pleaded case, only the person or persons who struck the two fatal blows with the bar could be liable in the civil proceedings. Since it was unlikely that the two blows were struck by different people, the appellants were unlikely to succeed against more than one of the defendants. Furthermore the appellants had the difficult task of identifying on the balance of probabilities whom it was that had struck the blow. I have considerable doubts whether Mr Askey should have conceded that there is no scope for joint enterprise in civil proceedings. However I accept that it might have been difficult on the evidence in the trial bundle to show that a defendant who had not struck the blows had caused the death or was a party to the use of the bar as a weapon. Given that the bar belonged to the deceased much would depend on who had used the bar first as an offensive weapon. If the deceased had first used the bar as an offensive weapon then the circumstances in which he had been disarmed and by whom he had been disarmed would be important, as well as the issue of self defence.[22]Mr James rightly did not seek to go behind the concession. As I shall show later in the judgment, Mr James accepted that the appeal could not succeed against the second defendant who, on the evidence of Mr Kirk, could not have inflicted the fatal blows.[23]On the first day Mr Askey made a handwritten application to rely upon the Schedule of DNA results, which was in the bundle which had not been agreed. He prefaced the application with an apology for the application not having been made much earlier. He explained that, whilst on sabbatical leave in America, he had advised by email in September 2009 that an application for permission to rely on the Schedule should be made. He further explained that no application had in fact been made due (at least in part) to the fact that the emails which he had sent from America had not arrived.[24]No notice of the application had been given before the first day of the trial.[25]The Schedule, a lengthy document with many entries, purports to give in tabular form the results of the forensic examination of a number of exhibits and in particular the bar that had caused the death of the deceased. The Schedule did not include the name of the forensic expert(s) who had carried out the tests. It is not clear who produced the schedule, whether the expert himself or prosecuting counsel at the criminal trial of the first defendant as an aide memoire for the jury. The Schedule did not satisfy the requirements set out in CPR Part 35.[26]An entry on the Schedule purported to show that, in addition to the blood of the deceased, the first defendant’s blood was on the bar. The words “1 in 1 billion” were added. The Schedule also purported to show that the DNA of the first and third defendants had been found on the bar. In so far as the first defendant’s DNA was concerned, he had said in his witness statement for the civil trial that he had picked up the bar, which he had seen the deceased brandishing, from the floor of the bedroom occupied by the second and third defendants. Having picked it up, he put it on the bed. The bar, on his account, had later been used in the fight. Mr Noble also said in his statement that he had a nosebleed and that could account for a trace of blood on the bar.[27]Mr James sought to rely on two other entries but we did not look at them in any detail.[28]Mr Askey was proceeding on the assumption that he required permission to rely on the Schedule in the light of CPR 35.4.[29]The judge pointed out that what was needed was a notice to admit the DNA results. Mr Askey accepted that, but added that permission would still be required.[30]Mr Leport objected. The application did not directly affect Mr Lawless. Mr Gibbs, who the application did affect, was not present and he knew nothing about the application, it not having been served on him before the trial.[31]Mr Leport referred the judge to the amended particulars of claim and to the absence of any allegation that his client, Mr Noble, had been in contact with the bar. Mr Leport submitted that if, it had been alleged as part of the pleaded case that forensic evidence would be relied upon to show that his client had been in contact with the bar, the matter would have been dealt with in detail.[32]The judge ruled that that the application was too late in particular given the fact that “the need for this evidence was apparently understood about four months ago” and given that the second and third defendant were acting in person and were not present. The judge said that there would have been no difficulty serving a notice at an early stage and in a case of this seriousness the application should not have been made at the last moment on the first day.[33]In ground 5 Mr James challenges this ruling.[34]Mr James raises an ingenious argument that Part 35 had no application and that no permission was required. He submits that whoever prepared the schedule had done so for the criminal proceedings and was thus not an expert within the meaning of rule 35.2. In that rule an expert is defined as a person instructed to give or prepare “expert evidence for the purposes of proceedings”. Mr James argues that the word “proceedings” must mean the proceedings between the parties and not some other proceedings. In other words he reads the rule as if the word “the” appeared before proceedings. I have considerable doubt about his interpretation. If this is a correct interpretation it would follow that an expert report prepared for proceedings A would be free of the important constraints in Part 35 in proceedings B. It follows, so he submits, that the Schedule prepared by some unknown person is not expert evidence at all and no permission was required. It was, he submits, documentary hearsay evidence and thus admissible by virtue of section 1 of the Civil Evidence Act 1995. Mr James took us to the speech of Baroness Hale in Polanski v Conde Nast [2005] 1 WLR 637, particularly paragraphs 76-78 where CPR rule 32.1 is discussed. Section 2 of the Act provides for notice to be given and section 2(4) provides that a failure to give due notice :
“... does not affect the admissibility of the evidence but may be taken into account by the court— (a) in considering the exercise of its powers with respect to the course of proceedings and costs, and (b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.” (a) in considering the exercise of its powers with respect to the course of proceedings and costs, and (b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.”
[35]Rule 32.1(2) provides; “The court may use its power under this rule to exclude evidence that would otherwise be admissible.”[36]In paragraph 78 Baroness Hale said of this Rule:
“But it would be a strong thing indeed to use such case management powers to exclude the admissible evidence of one of the parties on the central facts of the case. There may be circumstances in which this could be done.”
[37]In my view even if the judge had treated this evidence as admissible documentary hearsay the result would have been the same in the exercise of his powers under Rule 31.1(2).[38]I go further. The failure of the appellants’ legal team to take the necessary procedural steps prior to the start of the trial to be able to rely on DNA evidence at the trial is shocking. That said, there is nothing that this Court can now do. The judge was entitled to rule as he did. Indeed it may have been the only ruling that he could have given short of adjourning the trial, which he was not asked to do.[39]From ground 5 I turn to ground 1. That concerns Mr Kirk and his absence from the trial. I start by setting out the parts of his statement dated 20 August 2009 which are important in this appeal. He refers to an international football match and continues; “23. After the match had ended, we went back to our room at the Cricketers Arms. I had met a female at The Elephant and Castle that I was hoping to meet up with a bit later on and as I was still in my work clothes, decided to have a quick wash in the bathroom. The bathroom was situated two floors below This seems to be an error, the bathroom being on the first floor. Mr Askey accepted this when later he read out the statement. our room. It took me around 15 minutes or so to brush my teeth and have a wash.24. When I came out of the bathroom after having had my wash, the Landlady [the fifth defendant] was standing at the top of the stairs looking rather unhappy and mumbled something inaudible which sounded like “you’ll have to leave now…”. Of course I had no idea what was going on at this time. However on proceeding up the stairs, I heard a fight going on inside one of the rooms, nearby where the Landlady was situated.25. I ignored this and made my way back to our room on the top floor. On arriving in our room, to my surprise, I discovered that Kevin was not there. I put my wash bag and towel away and then went back downstairs to see whether I could find out where Kevin had got to. On reaching the floor below, the Landlady was still stationed outside the room where the fight was going on. As she once again gave me what I thought was a ‘dirty look’ I decided to find out just what exactly was going on inside the room. The door was open and so I went inside. When I got inside, I found a number of the Welshmen, who were also staying at the Cricketers Arms, on top of Kevin. Kevin was on the floor and the Welshmen were hitting him. It looked like they had been hitting him for some time. My first instinct was to help my friend, who was obviously in need of help. I pulled one of the Welshmen off Kevin and he started to tussle with me. After that I managed to break free and so did Kevin. Kevin got up and we went straight back to our own room. When we got back to our room, I asked Kevin what had gone on but he told me that “it was nothing” and to “forget it”.”[40]This was contrary to the pleaded case. Paragraph 6 of the amended particulars of claim alleged that the first three defendants entered room No. 8, the room occupied by the deceased and Mr Kirk, and assaulted the deceased. The statement continues:
“26. Kevin had obviously been quite badly hurt in the fight. His face was all swollen up. One of his eyes looked like it was closing up. His mouth was also badly cut. I remember thinking at the time that he was in quite a bad way. There was no time to suggest that he get his injuries seen to and treated because the Welshmen had followed us up to our room and I could hear them outside our door. 27. I decided to try and get rid of them and so opened the door to speak to them. In the heat of the moment and because I was so angry for what they had done to my friend I might have shouted threats in an attempt to scare them off. They did not take kindly to this and instead started to fight with me again. I did not know what to do as there were so many of then and only two of us, with Kevin being in a ‘bad way’ already. 28. I could not defend myself against the sheer number of them and Kevin having heard the commotion came back out of our room to try and help. I somehow found my self being forced down to the lower levels of the establishment and was forced in to the bathroom. I cannot remember exactly how may of then were fighting with me at that point but it felt like I was being strangled. When they finally released their grip of me and I managed to break free, on exiting the bathroom, I noticed that Kevin was in the hallway outside and was obviously severely hurt. He was lying on his back and appeared to be unconscious. All of the Welshmen had stopped fighting and were just standing around him. One of them had a bar in his hands. I since found out that this was one of Kevin’s dumbbell bars which was located in our room near the door and which they must have taken when they were at our room. I identified the man who was holding the bar later on in the criminal proceedings. I did not see him using the bar on Kevin but he was standing over Kevin holding the bar in a rather menacing fashion when I exited the bathroom.”
[41]On this account the attack took place outside the bathroom, which contrary to what Mr Kirk said, was on the first floor. Although not made part of the trial bundle the examination-in-chief of Mr Kirk at the trial was included in a separate bundle. I have looked at that. It is sufficient to say that the man who he says was strangling him was the second defendant. That being so, the second defendant could not, on Mr Kirk’s account, have been the person who struck the deceased with the bar. For that reason Mr James accepted that the appeal could not succeed against the second defendant.[42]It should also be noted that Mr Kirk accepted in his examination-in-chief that he was “very drunk” and had no recollection of much of what happened. The cross-examination by counsel at the criminal trial for Mr Noble was not included. It seems likely that the cross-examination must have undermined Mr Kirk’s evidence, given that the judge stopped the case at the close of the prosecution’s evidence.[43]Mr Kirk’s witness statement, whilst probably consistent with his evidence-in-chief at the criminal trial, was inconsistent with or did not support the pleaded case that the third defendant was seen to have held the bar and that the third defendant falsely imprisoned the deceased and thereafter admitted that he had killed him. At no time has there been an application to amend the pleadings. Indeed Mr James, whilst seeking a new trial to put the case against Mr Noble based on the evidence of Mr Kirk, had not prepared a draft amended particulars of claim to reflect that evidence. I should add that whilst pursuing the case against Mr Noble on this basis, he also wanted in the proposed new trial to continue with the allegation that the third defendant had struck the blow(s).[44]On the first day of the trial Mr Kirk, who is related to the deceased’s widow, did not attend and it was not clear whether and when he might attend. Mr Askey submitted that the judge should hear the other evidence in the case including any evidence given by the defendants and then hear Mr Kirk, hopefully on what would have been the fifth day of the trial, Friday. Bearing in mind that the only evidence purporting to identify the killer which the appellants could rely on after the DNA ruling was the evidence of Mr Kirk, it is unsurprising that the judge refused this submission. That ruling is not appealed.[45]Mr Askey then made an application to read the statement of Mr Kirk, which was granted. Mr Askey called Mrs Lavelle, whose statement is not relevant to the grounds of appeal. He then read out the statement of Mr Kirk and the evidence of the pathologist. Having done that he told the judge that that was his case. The judge then called upon Mr Leport and put him to his election, namely make a submission or call evidence. Mr Noble was not in court and the case was adjourned overnight to permit Mr Leport to decide whether to call his client.[46]On the next morning Mr Gibbs came to court, telling the judge that he had not known about the trial date. Mr Gibbs made it clear that he did not want to give evidence. Mr Askey said that this was wholly unsatisfactory. The judge said that Mr Gibbs had a “perfect right” not to give evidence. Mr Gibbs had denied the claim in a handwritten document and had not made a witness statement.

The judge reminded Mr Askey during the course of discussions that he had closed his case.

[48]Mr Leport said that he was not calling his client to give evidence. Mr Gibbs was asked formally whether he wished to give evidence and he said that he did not. Mr Lawless was not present. The fourth and fifth defendant then decided not to give evidence.[49]The judge then invited Mr Askey to make his closing submissions, which he did. During the course of the submissions Mr Askey invited the judge to infer from the passage in Mr Kirk’s statement “I identified the man who was holding the bar later on in the criminal proceedings”, that Mr Kirk was referring to Mr Noble. The judge had no direct evidence that it was Mr Noble. The judge made it clear that he was not minded to draw the inference.[50]At one point Mr Askey complained that “The Court is being manipulated by the defendants who at the final hurdle ... ”.[51]Just before the short adjournment on the second day Mr Leport concluded his submissions and Mr Gibbs said that he had nothing to add. At 2.00 pm counsel for the fourth and fifth defendants were about to start their closing submissions when Mr Askey orally sought permission to put into evidence the disclosed statements of those defendants who had made statements. The judge ruled against that application that afternoon, giving his reasons on 28 January. In Ground 2 Mr James alleges that the judge was wrong to refuse Mr Askey permission to put into evidence and rely upon the statement made by Mr Noble. Mr Askey wanted Mr Noble’s exculpatory statement in, not to prove the case against Mr Noble but to prove the case against Mr Gibbs, the third defendant. In his statement Mr Noble had said that Mr Gibbs had come into the kitchen after the incident was over, in a very agitated state and said that he had killed him. I can deal with this ground very quickly. On the assumption (which is disputed) that Mr Askey could have put in the statement as part of his case or perhaps before the defendants formally announced that no evidence would be called, was the judge entitled to refuse the application after the defendants had elected not to call any evidence after all submissions other than those to be made by the fourth and fifth defendants? The answer to that question can only be that he was entitled to reject the submission, if not driven to reject it. As the judge said on 28 January: the application was both extraordinary and wholly unsatisfactory.[52]Having rejected the application counsel for the fourth and fifth defendants began his submissions. The court then adjourned until the third day to enable counsel for the fourth and fifth defendants to complete his submissions. Mr Gibbs was told that he need not attend the next day and he did not do so.[53]At the outset of the third day Mr Askey handed in a written application seeking the following[54]The judge refused to reopen the matter referred to in paragraph 1 of the draft order and refused to make the order in paragraph 4. There is no appeal against those two refusals.[55]As to the application to put into evidence the transcript of the evidence at the Inquest, the part of the transcript which Mr James particularly relied upon was a passage from the evidence of the third defendant:
“THE CORONER: Now, witnesses have said that both outside the kitchen and in the kitchen you were saying, “I’ve killed him. I’ve killed him, and I’ve got two children.”
Did you remember saying that? MR GIBBS: Sir, all I can remember was – here saying that if I’d done him wrong, I’d killed him in the restraint, sir, I’d lost – I had to fess up. But I can’t remember the exact words I said, sir.”[56]Thus Mr Gibbs was accepting that he might have killed the deceased by restraining the deceased. But restraint was not the immediate cause of death.[57]Giving his reasons for refusing the application,

the judge said:

“17. There had been an application made on insufficient notice just days before the trial for the court’s permission “to rely upon the transcripts of the Coroner’s Inquest held on the 24th, 25th and 26th of March 2009.”
It appeared, on that occasion, that the claimants were seeking very late in the day, carte blanche to rely upon the record of the Coroner’s proceedings, not just as an accurate summary of what was said but also as to the truth of some or all of what was recorded as said. When asked about this, Mr Askey indicated that he would like to be able to use the transcript to cross-examine the defendants. At that stage, at my initial suggestion but with the consent of all parties present, I indicated that there be leave to use the inquest transcript for the purposes of cross-examination without need for formal proof of the accuracy of the transcript. I understood all parties, including Mr Askey, to be content with that determination. 18. He now seeks a further order, as indicated, so as to use the transcript not for the purposes of cross-examination but as further independent evidence and it is now suggested in the body of the application that the only reason the claimants consented to the order that was made was that there had been:
“…an agreement that the defendants would give their evidence.”
This is not what took place. [Mr James does not argue to the contrary.] 19. It is most unsatisfactory that in a case of this nature care and thought had not been given long ago to consideration of what material should be available at trial and on what basis it should be before the court. Mr Askey in fact indicated that he had advised that there should be an application about inquest evidence in August 2009. There was in fact a PTR hearing on the 2nd of September 2009, when the trial date was fixed, but nothing appears to have been said then about the inquest transcript and no application in this connection was made until the 15th of January 2010 – heard on the 20th of January. The only explanation appears to be “failures” in the claimant’s solicitor’s office. 20. It might also be observed that there has been a criminal trial against the first defendant in which he was acquitted. Nothing has been done about admitting any evidence of or record of that either. 21. Notwithstanding the very real sympathy which the court naturally has for the position of the claimants, it cannot be appropriate to allow applications to admit evidence of this kind at this stage in the proceedings. To do so would in effect be to reconstitute the trial, which was all over bar the conclusion of the final parties’ final speech. The need for evidence of this kind should have been appreciated months, if not longer, ago and the appropriate steps taken by way of discussion, agreement and if necessary application, well before trial.”

This is not what took place. [Mr James does not argue to the contrary.]

[58]In Ground 3 it is submitted that the judge was wrong to refuse this application.[59]In my view not only was the judge entitled to refuse the application but was bound to do so for the reasons he gave.[60]As to the request for an order requiring the defendants to give oral evidence, Mr Askey accepted in the course of argument that the judge had no power to make such an order. It is, to say the least, surprising that Mr Askey thought when he drafted the application that the judge had the power to make such an order.[61]As to the application for an order adjourning the case until Friday 29th, on which date it was now thought that Mr Kirk could attend as a result of a fax from him, the judge refused it. In his reasons which he later gave for refusing it he said:
“22. Next it was said that permission should be given for Mr Kirk to give evidence on Friday and the trial should be adjourned until then. Behind that, of course, was the hope that Mr Kirk would then be allowed to say what is not in his statement; that he saw the first defendant holding the bar over the Deceased. This would be the most vital and relevant part of his evidence and, of course, very important. A court is enjoined by CPR 32.5 to give permission for the amplification of witness statements: “…only if it considers that there is a good reason not to confine the witness to the contents of his witness statement.”
Significant leeway is in fact commonly allowed in permitting a witness to explain or expand upon his statement, but it is quite inexplicable why this evidence is of paramount importance was not in Mr Kirk’s original statement. If it had been, it may well have established a strong prima facie case against the first defendant. But since it was not, it is hard to see what “good reason” there could be for allowing this vital evidence, which for some quite unexplained reason was not put in the statement, to be supplied now. It is said, of course, that the interests of justice and the fairness to the claimants could justify it. I repeat that I have great sympathy with the claimants, but their legal advisors have simply failed to prepare the case as they should. If Mr Kirk can identify the first defendant as the or a man with a bar, as in a letter sent to the court on the 27th of January he has said he can, then this should manifestly have been dealt with explicitly in his statement. 23. If leave was given to adjourn until Friday for Mr Kirk to be called and even supposing that he were permitted to amplify his evidence in the way suggested, it would then be that the first defendant and possibly other would need to consider their own stances and call evidence after all. An adjournment part-heard would then be needed for weeks or more until it was possible to continue the case to its conclusion, It would in fact be a second trial in all but name, and this would be wholly unsatisfactory. 24. Accordingly, I rejected the application to adjourn to allow Mr Kirk to arrive on Friday.”[62]In Ground 1 it is said that it was wrong to refuse the adjournment to permit Mr Kirk to give evidence on the Friday.[63]Mr Kirk has provided a witness statement for the purposes of the appeal setting out the considerable difficulties which he faced to get away from his job in the Republic of Ireland. He refers to the faxed letter which he wrote to the judge on 27 January explaining that he would attend on the Friday and stating that, in the criminal proceedings, he had identified the first defendant as the man holding the bar.[64]In my view this statement, even if admissible, takes the matter no further.[65]I see no merit in ground 1. I repeat what I have said before. The judge was not only entitled to refuse the application but was bound to do so for the reasons he gave.[66]I should briefly mention Ground 4 which, Mr James accepted, could only succeed if the other Grounds succeed. They do not and therefore Ground 4 does not arise.[67]For all these reasons I would dismiss the appeal.[68]I am sufficiently concerned about the handling of the trial by those representing the claimants at trial that I would invite the professional bodies of those responsible to examine it.

LORD JUSTICE MUNBY :

[69]I agree

LORD JUSTICE PILL :

[70]I also agree.

order

“1. A review of the decision of HHJ Harris QC to refuse the claimant’s application to rely upon the witness statements of Ceri Noble and Mr McCarthy. 2. Permission to rely upon the transcript of the evidence at the Coroner’s Inquest or, in the alternative, an order that each of the defendants provide oral evidence. 3. In the alternative to 1 and 2, an order granting permission for Mark Kirk to give his oral evidence to the court on Friday, 29th January 2010. 4. In the alternative to 1, 2 and 3, an order adjourning the trial until the adjudication of an appeal concerning the court’s refusal to grant our application under CPR 32.5 and an appeal should the court either refuse the claimant permission to rely upon the Coroner’s transcript or refuse to order that the defendants to give [sic] oral evidence.”