“I have asked Palmers [i.e. Mr Garnham’s solicitors] to look at your list of documents to see whether there is a reference to a tape recording of the (asserted) meeting between Mrs B and Mr G at (I assume) the hospital making the asserted misrepresentations. Do you intend to bring the tape to the mediation?”
“Tape recorded conversation – I am sure the recording can be made available. It is quite difficult to follow as it is both a poor recording and, in some instances, there are two conversations going on at the same time. It has however been transcribed by an expert. Do let me know if you would like a copy of the recording.”
“I would certainly like to see the transcript of the tape. The tape ought to have been disclosed (Palmers tell me it was not in Mrs B’s list and had not been disclosed since). Could you please arrange for them to be sent a copy of the tape and, if my instructions are correct, an explanation for its non-disclosure to date.”
“I have referred the transcript issue to my sols – they will provide a copy to Palmers. If the transcript and tape are not in the list of documents then it must simply be that they were overlooked.”
“I have taken instructions on the tape recording at the hospital – it was disclosed as item 49 in C’s list. I have it in computer form. Do let me know if you would like me to email the file.”
“we would point out that item 49 of your list of documents refers to ‘copy attendance note DWC’ and not a recording from a forensic audio company. Please explain this discrepancy or direct us to the correct item in your client’s list of documents.”
“Whether, when the document was sent by fax to Palmers and printed for sending by DX, the wrong file was accessed, I do not know. I suppose it is possible that either I or my secretary … may have made a mistake which (in the latter instance) I failed to pick up. In any event if that is what happened, it would have been an inadvertent mistake which only came to light during preparation for the Mediation.”
“Mr Garnham was under severe pressure by this stage. His solicitors had said he would apply for an adjournment of the trial, but he had not done so. He was not ready for trial. He apparently had witness statements from his witnesses but was reluctant to exchange them. He was therefore at severe risk that he would not be permitted to rely on them, which was crucial to his counterclaim. He had not instructed an accountancy expert. There were credibility issues about whether he had in fact spoken to [Mrs Bristow] in hospital.”
“I am advised and believe that the Defendants are not, and are not likely to be, ready for a trial on14th June 2010 . [Mr Garnham] … has told me that he believes that it will take him another month to complete his witness statement [and those of the other 13 witnesses he wishes to call]. He has told me that his own witness statement was likely to run over 130 pages, that he has instructed an accountant to give evidence on his behalf – and that the accountant has indicated that his report is not likely to be ready before September 2010.”
“Defendant: Mrs Iris Edith Garland Bristow (Deceased) Represented by The Executors of her Estate: 1. Christopher Ian Millar 2. [Jane] Marie Whiting 3. John [Bruen] Hughes”
“The non disclosed Tape/Tapes produced in the form of a CD and a 40 page transcript at the mediation meeting on the14/5/2010 , and used as a weapon in an ambush, I never knew existed prior to the mediation meeting.”
“There is Overwhelming and Proven Evidence of Lying, Misrepresentation, and Dishonesty by the Defendant, [Jane] Marie Whiting, and/or Chris Millar, and/or Hugh Jackson, in the Statements made in the Particulars of Claim for the [2009 Proceedings].”
“It is time that this misplaced action was disposed of. The defendants have satisfied me that there is no fair or reasonable probability of Mr Garnham having a real or bona fide claim. I give him the benefit of the doubt and say that I think he now explicitly believes the allegations he is making, but they are nonetheless scurrilous and unfounded.”
“80. While I repeat that it is not for me to make findings on an application where there is a genuine dispute of fact, I am permitted to take a common sense view of the credibility of Mr Garnham’s case. When the absence of any credible evidence as to the fact of forgery of the recording, and the absence of any suggestion whatsoever as to how such a sophisticated forgery could have been effected, are considered in conjunction with the gravity of the allegation against those who are said to be responsible, the prospects of establishing that [Mrs Bristow], any of the defendants or counsel were ‘in on it’ is fanciful. There are no surrounding facts which give rise to any credible case by inference. Any reference to having ‘a tape’ can only be understood (and can only have been understood) as references to the medium on which the recording was available. 81. It is also very important to my mind that if Mr Garnham had objected to the recording at the time he would still have been advised to agree, and would have agreed, the Tomlin. There was no realistic chance that he would succeed at trial so that exclusion of the recording would not have sufficed. Indeed, … one does not have to read very far between the lines of his counsel’s email exchange with [Mrs Bristow’s] counsel before the recording came to light to realise that, correctly, a pessimistic view was being taken of Mr Garnham’s chances of success.”
“[T]he idea that the recording would be withheld from the defendants’ disclosure list (with the possible consequences as to its admissibility (because ofCPR 31.21 ) and indeed on the matter proceeding to trial in the window allocated) in order for it to be deployed in the alleged ambush is far fetched. Given that the mediation was arranged at the last minute (Mr Garnham having dropped his earlier reluctance to mediate) and on about 10 days’ notice a month before trial, the idea of this important piece of evidence being held back so late in case some event would occur so that it could be used against Mr Garnham, is fanciful.”
“44. More important than that, it is perfectly clear from all the circumstances of this case that the reason that the 2009 proceedings were compromised was because, on their merits, Mr Garnham was unlikely to win them. He was advised by solicitors and counsel. He chose to settle the proceedings knowing that a recording had been produced and knowing that he had not had an opportunity fully to consider its contents or its genuineness at the time. He was in a position to decide whether or not to settle knowing of those uncertainties. He chose to settle with legal advice. 45. In those circumstances, not because Mr Garnham cannot show that there are uncertainties about the precise date and time of the recording and the precise provenance of it, but because the recording does not seem to me to have been a material factor in Mr Garnham’s decision to settle, there is no possibility of a successful appeal from Proudman J’s judgment.”
“In litigation it is crucial that there is finality to all disputes …. Mr Garnham is, I am afraid to say, conducting a crusade in an attempt to rewrite history and to extricate himself from a settlement agreement that transparently represented the merits of the 2009 litigation and that he freely entered into with the benefit of legal advice.”
“I should point out in this judgment that I am disappointed to see that Mr Garnham has seen fit to issue new proceedings against the same parties in respect of very similar relief as has been sought in those proceedings …. Mr Garnham should be aware that if he were to pursue the same proceedings under a new claim form against these Defendants having been denied permission to appeal from Proudman J’s judgment, it is more than likely that he will be the subject of an application for a Civil Restraint Order in the usual terms.”
“there had been false non disclosure, fraudulent misrepresentation, deceit, and dishonesty in relation to [Mrs Bristow’s solicitor’s] consultation notes and Mrs Bristow’s medical records and the Tape, its originality, authenticity and genuineness, and the accuracy of the Transcripts prior to, and/or at mediation in the [2009 Proceedings] and thereafter in the [2012 Proceedings], as described in the Particulars of Claim for the [present] proceedings and contravention of statute, for which I now pursue a claim for damages.”
“From all of the aforementioned unscrupulous and/or dishonest conduct, I have suffered financial loss and emotional distress in my business and my private life over a period of 5 years; I therefore claim damages for the same.”
“(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.”
“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before…. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, it if is, to ask whether the abuse is excused or justified by special circumstances.”
“Lord Bingham made clear in his speech [in Johnson v Gore Wood & Co] that the approach should be a ‘broad merits-based judgment’ and not formulaic. It is clear he was approving the passage in the judgment of Megarry V-C as the ‘correct approach’ and not as a statement of rigid application. The fact that the defendants to the original action and to this action are different is a powerful factor in the application of the broad-merits based judgment; it does not operate as a bar to the application of the principle.”
“Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase ‘privity of interest.’”
“In my view these cases establish the following propositions. (a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court. (b) If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of sections 11 to 13 of theCivil Evidence Act 1968 , the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings…. (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.”