“Moreover, this litigation is yet another episode, in a series of attempts by the Claimant and/or Nicholas and/or Betty, to harass Chris and misappropriate and/or deprive him of his assets. For the avoidance of doubt it is the Defendants’ case that this litigation is being driven forward by the Claimant and Nicholas acting in concert. Other examples of such attempts are: a. The Claimant’s, Nicholas’ and Betty’s failed attempt in late 2014 to misappropriate some£12m Chris had achieved as part of property deals he was involved with. b. In October 2014 the Claimant used his IT skills to dishonestly create and plant a `Declaration of Trust’ document on Chris’ computer purporting falsely to show Chris transferring ownership of companies with assets totalling some£30m out of his ownership to Nicholas. It was only through the use of a graphologist by Chris that the document was caused to be withdrawn by Betty. c. The Claimant and Nicholas engaged in other unlawful behaviours such as illicitly jailbreaking an iphone given to Chris in July 2014 so as to listen to and record his activities. They thereafter recorded Chris having consensual sexual relations with a woman. Such behaviours led to Chris issuing proceedings from harassment in the Queen’s Bench Division in October 2015. Chris will rely upon the instances of harassment itemised there in the trial of the present claim. d. Nicholas’ concoction of a story, as set out in his witness statement served in the matrimonial proceedings, about Chris having allegedly promised to provide him with a shareholding in Chris’ business so that Nicholas could seek to seize control of Christo & Co. e. Nicholas seeking to procure the transfer to him of Betty’s 50% shareholding (valued at in excess of£16m as at 2015) in Docklock Limited (such that Nicholas and Chris would have an equal shareholding) – with Betty then able to claim 50% of the balance of Chris’ shareholding during the matrimonial proceedings – leaving him with only a 25% shareholding. f. Nicholas’ assertion within his witness statement served in the matrimonial proceedings that he had been gifted Chris’s and Betty’s matrimonial home at Ranulf Road as a wedding present. The home at Ranulf Road was valued at in excess of£3million . g. Nicholas’ intermeddling in proceedings issued by Chris’ company Christo & Co Ltd against a Ms Kelly. Ms Recorder Rowlands held in a written judgment dated12 March 2017 that his actions were “clearly motivated by malice”. h. Nicholas’ appearance as a witness on behalf of TAG Limited in a claim for alleged non-payment brought against Christo & Co. In his judgment dated24 November 2016 District Judge Fine concluded that he could a. The Claimant’s, Nicholas’ and Betty’s failed attempt in late 2014 to misappropriate some£12m Chris had achieved as part of property deals he was involved with. b. In October 2014 the Claimant used his IT skills to dishonestly create and plant a `Declaration of Trust’ document on Chris’ computer purporting falsely to show Chris transferring ownership of companies with assets totalling some£30m out of his ownership to Nicholas. It was only through the use of a graphologist by Chris that the document was caused to be withdrawn by Betty. c. The Claimant and Nicholas engaged in other unlawful behaviours such as illicitly jailbreaking an iphone given to Chris in July 2014 so as to listen to and record his activities. They thereafter recorded Chris having consensual sexual relations with a woman. Such behaviours led to Chris issuing proceedings from harassment in the Queen’s Bench Division in October 2015. Chris will rely upon the instances of harassment itemised there in the trial of the present claim. d. Nicholas’ concoction of a story, as set out in his witness statement served in the matrimonial proceedings, about Chris having allegedly promised to provide him with a shareholding in Chris’ business so that Nicholas could seek to seize control of Christo & Co. e. Nicholas seeking to procure the transfer to him of Betty’s 50% shareholding (valued at in excess of£16m as at 2015) in Docklock Limited (such that Nicholas and Chris would have an equal shareholding) – with Betty then able to claim 50% of the balance of Chris’ shareholding during the matrimonial proceedings – leaving him with only a 25% shareholding. f. Nicholas’ assertion within his witness statement served in the matrimonial proceedings that he had been gifted Chris’s and Betty’s matrimonial home at Ranulf Road as a wedding present. The home at Ranulf Road was valued at in excess of£3million . g. Nicholas’ intermeddling in proceedings issued by Chris’ company Christo & Co Ltd against a Ms Kelly. Ms Recorder Rowlands held in a written judgment dated12 March 2017 that his actions were “clearly motivated by malice”. h. Nicholas’ appearance as a witness on behalf of TAG Limited in a claim for alleged non-payment brought against Christo & Co. In his judgment dated24 November 2016 District Judge Fine concluded that he could i. The service by Docklock Ltd, (the main property company established by Chris over two decades) purporting to act by Nicholas and Betty, of notice upon Christo & Co to quit its headquarters at 66 – 70 Parkway. j. Chris being moved (in his absence) out of the matrimonial home into a flat at 73 Parkway (owned by Docklock Limited) to which he arrived to find his clothes and belongings in rubbish bags. Chris was subsequently served with notice by Docklock (purportedly acting via Nicholas and Betty) to quit the flat. k. Nicholas’ setting up of a commercial property business in competition to Christo & Co Ltd (in which Nicholas sought to adopt the `Christo’ name for that venture) leading to a decision by the Registrar of Trade Marks that Nicholas had acted in bad faith contrary toSection 3(6) of the Trade Marks Act 1994 and had acted in a manner that fell “below the standards of acceptable commercial behaviour”: see the decision of the Registrar dated10 May 2018 . l. Nicholas causing Blue Sky Investments Ltd (“Blue Sky”), another company owned by Chris (and which was allocated to him during the divorce) purportedly to award Betty, without instructions from Chris or the directors of Blue Sky, a tenancy for a property at Cheyne Walk, NW4. m. Nicholas claiming to own a plot of land in Cyprus belonging to Chris. n. Nicholas seeking to deprive Chris of ownership of a Porsche motor vehicle by asserting that the vehicle was gifted by Chris to Nicholas’ wife. 20. The present proceedings are another chapter in the brothers’ campaign against Chris of which examples have been given above. They are motivated by the malice of the Claimant and his brother against their own father, and are intended to harass him and misappropriate further of his assets ranging from modest sums to millions of pounds. As such they constitute an abuse of the Court’s process. Chris will say that the dishonest and abusive conduct itemized above should inform the Court’s approach to the Claimant’s claim in these proceedings.”
“… The email alleged must not be taken at face value. Unbeknownst to Chris at the time, the email was sent by Nicholas and received by the Claimant in a cynical and ironic sense. In particular: a. At the time that email was sent (8 April 2014 ) the Claimant and Nicholas already knew of their mother’s intention to issue divorce proceedings and they were already preparing to try to take Chris’ assets away from him in that context. In fact divorce proceedings were delayed (from their intended service in June 2014) because Betty waited, at the direction of Nicholas/theClaimant, until a large transaction completed which resulted in a substantial profit going to Chris. b. …. c. … d. The “bigger picture” to which the Claimant referred was attempting to extract millions of pounds from Chris in the context of the proposed proceedings. That included a£12m transfer of money to Beirut and a declaration of trust designed to divert£30m away from Chris and his companies including taking over control of Christo & Co through Betty’s shareholding.” e. … f. … g. … h. Nicholas replied one minute later at 17.47 saying he thought Chris’ email had been heavy handed. The Claimant replied to that email from Nicholas and said as follows: “You call that a heavy hand? Christ, wait till he sees what’s coming his way…” i. The Claimant’s reference to what was “coming”
“Based on my experience in this particular case it seems to me that thefollowing considerations may be relevant to the exercise of that broad power: (i)CPR r 32 must be read as a whole. The court needs to use all the powers at its disposal to ensure the efficient and fair conduct of the trial. The power to prohibit the calling of witnesses sits towards the more extreme end of the court’s powers and hence is a power a judge will ordinarily consider after less intrusive measures have been considered and rejected. (ii) As Jackson LJ observed in the citation above a court which seeks to regulate the nature and extent of witness evidence will generally wish to do so at an early stage, before the preparation of the witness statements themselves and before costs are incurred needlessly. At this stage it may also be possible for the parties to identify matters which may be made the subject of admissions and which would, thereby, avoid the need for any further evidence to be adduced. (iii) In the light of (ii) above, whilst it is clear that the power to exclude or control witness statement evidence is best exercised ex ante ie before the preparation of witness statements, the CPR does not preclude the court exercising its powers ex post, ie after witness statements have been drafted, with a view to ensuring an efficient and fair trial. (iv) A judge asked by a party to prohibit the adducing of contemplated future or already prepared witness statement evidence will be doing so before trial. Accordingly there is a risk that a decision by a judge may turn out, albeit with the benefit of hindsight, to have been made in error and to have caused unfairness to one or other of the parties in the conduct of the trial. Accordingly a court, asked to adopt this course, will wish to be satisfied that it has the fullest possible information available to it. Jackson LJ observed that such a court will need to have adequate preparation time and be given sufficient guidance from the parties as to which parts of which statements are said to be otiose, prolix, or otherwise inadmissible. (v) Based on my consideration of the issues in the present case, it seems to me that in cases where a court does seek to limit the calling of witnesses it may be necessary to introduce a safety valve pursuant to which the parties would have liberty to apply and/or, by consent, to vary the order of the court. In this regard, a court will be entitled to expect from the parties a considerable degree of cooperation and good sense. The imposition of costs sanctions, after the event, is a blunt instrument whereby the court may express its displeasure. It is far better for the parties to co-operate at the earlier stage with a view to modifying a court’s prior order so that all factual matters that need to be aired at trial can be done so in an efficient manner…”
“53. As the trial judge, it is common ground that I will be best placed to make the necessary determination of admissibility. That said, I am mindful that I must exercise particular caution in determining such an application at a pre-trial stage. As is observed in the White Book at paragraph 32.4.21, a passage now approved in Bates v The Post Office[2018] EWHC 2698 (QBD) : “Where an application is made during the trial, the judge is well placed to determine whether particular passages in a witness statement have real value or are irrelevant and/or disproportionate. A judge asked to approach such questions at the interlocutory stage is at a disadvantage and should only strike out proffered evidence if it is quite plain that no matter how the proceedings may look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it (Wilkinson v West Coast Capital [2005] EWHC, 1606 (Ch) (Mann J). The court must be on its guard to ensure that costs and delays are not increased by ill-conceived applications to strike out witness statements.” 54. Inevitably the question whether such a determination should be made at a pre-trial stage will be fact and case sensitive. As was observed by Underhill P (as he then was) in the context of a discrimination claim in HSBC Asia Holdings BV & Another v Gillespie[2011] ICR 192 EAT, whilst caution is necessary, if satisfied on the facts of a particular case that the evidence in question will not be of material assistance in deciding the issues raised and that its admission will cause inconvenience, expense, delay or oppression, such that justice would be best served by its exclusion, the judge should be prepared to rule accordingly.” “Where an application is made during the trial, the judge is well placed to determine whether particular passages in a witness statement have real value or are irrelevant and/or disproportionate. A judge asked to approach such questions at the interlocutory stage is at a disadvantage and should only strike out proffered evidence if it is quite plain that no matter how the proceedings may look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it (Wilkinson v West Coast Capital [2005] EWHC, 1606 (Ch) (Mann J). The court must be on its guard to ensure that costs and delays are not increased by ill-conceived applications to strike out witness statements.”
“For completeness, I should make clear that even if I was wrong about the admissibility of this evidence, I would in any event exercise my case management discretion to exclude it as it raises very specific and very different issues from those that are to be determined in this case, relating to an entirely different potential move some years earlier. It would only serve to distort rather than to assist the court's focus. And it is also clear, even at this pre-trial stage, that the potential prejudice would far outweigh any possible probative value of this evidence, and the introduction of this material would jeopardise the fair trial of the case.”
“70. We turn, then, to our conclusions. In our judgment the judge took too stringent a view of the first issue (the relevance of the similar fact evidence). Although she never stated exactly what test she was applying, she appeared to require that the evidence should be of itself, and standing alone, probative of the nature of the relationship between Springwell and Chase. For instance, she said (at para 38 of her judgment) that "the facts and circumstances of the other Greek families and the intricacies of their commercial relationship with Chase are unlikely, in the circumstances of this case, to be logically probative of whether or not such a relationship existed between Springwell and Chase" 71. That puts the test for the relevance of any evidence, and conspicuously for the relevance of similar fact evidence, far too high. Cross & Tapper, Evidence (9thedition), p55, suggest that as a definition of relevance it is not possible to improve on article 1 of Stephen's Digest: "any two facts to which [the term] is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non−existence of the other [emphasis supplied]" 72. A fact may therefore be probative either on its own or because it renders a conclusion more likely when taken in conjunction with other facts. The latter is essentially the role of similar fact evidence. The relationship of Chase with the other Greek families, taken on its own, clearly cannot prove anything about the relationship between Springwell and Chase. But it might explain, illuminate or put in context evidence about that latter relationship that would otherwise be ambiguous or difficult to understand.”
“But there are limits to the extent to which the parties can be allowed free rein. A party’s right to choose how to present his case may have to be balanced against other legitimate public or private interests. For example the both the opposing party and the general public have an interest in keeping down the length and cost of litigation. On this ground the judge will sometimes rule inadmissible the exploration of side-issues which, though having some potential relevance, do not appear sufficiently relevant to justify the time and expense which would be required to investigate them.”