"Mr Wilson's case is that each of the WhatsApp messages and text message ... are forgeries. For the avoidance of doubt, it is also Mr Wilson's case that the metadata on each of the screenshots is likely to have been manipulated to show data contemporaneous with the RSM Audit. Mr Wilson ... infers from their source and their recent production in litigation that the documents are likely to have been forged by Mr Burton or someone on his behalf."
"A party may not without the permission of the Court or agreement of the parties rely on any document in its control that it has not disclosed at the time required for Extended Disclosure (or within 60 days after the first case management conference in a case where there will be no Extended Disclosure). For the avoidance of doubt the party and its legal representatives remain under the duties under paragraph 3.1 (the Disclosure Duties) and 3.2 above. The effect of this rule is that the party which has in its control a document on the date for extended disclosure (or within 60 days) after the first CMC but does not disclose that document on that date requires the consent of the other parties or, failing that, the Court's permission to apply on that document."
"19. Cs apply pursuant to paragraph 12.5 ofPD57AD for permission to rely upon documents disclosed after the Extended Disclosure deadline (21.02.25). D1 and D3's position is as set out in Aspect Law's letter of 11.12.25, namely that they are content to consent to this application as long as Cs identify when Mr Burton provided (or otherwise they came into Cs hands) document productions..."
"3.9(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or Court order, the Court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders."
"I have concerns about giving evidence in person, in Simon's presence [Mr Wilson], given Simon's past behaviour toward me and my relationship with him, the impact of Simon's past behaviour on my life and well-being, and the potential for cross-examination about my interactions with Simon and the harassment by Simon. 17. I have had very unpleasant interactions with Simon, who has made physical threats towards me. As stated in paragraphs 66 and 67 of my First Witness Statement, on10 January 2022 Simon told me at RPL's offices that he was 'going to fucking smash my face in', and menaced me with a chair, saying he would 'fucking throw this chair to split my head'. This caused me to fear for my personal safety (and also caused distress to other members of RPL's staff). Simon was a successful amateur boxer. As stated at paragraphs 88 and 91 of my First Witness Statement, on4 September 2022 , he forced me to send an email retracting my whistleblowing allegations telling me that if I wanted to get out the Cornbow Shopping Centre without being hurt I had to send that email. This incident left me shaking and unable to drive immediately after it. 18. Simon has subjected me and others close to me to a campaign of harassment and intimidation involving sending threatening WhatsApp messages, overflying my house, causing my home to be photographed, bringing the private prosecution and threatening legal proceedings against Nicola, my former PA. I have described these matters in detail in paragraphs 98 to 106 and 110 to 113 of my First Witness Statement and paragraphs 54 to 58 of my Second Witness Statement. 19. Based on my experience of Simon, he holds grudges and is willing to resort to violence if he does not get his way. Simon is a man of considerable means, and I have no doubt that he is capable of getting to me (personally or through others) if he knows my location, especially if that location is in the UK but also if it is abroad: that is why I have gone to such lengths to keep my current whereabouts private. For example, I am aware from speaking to Caroline at the time that Simon sent two men (who I now understand from Gerbi 2 were masked and wearing baseball caps) to intimidate Caroline's elderly parents in Taiwan. I also believe that he has the motivation to get to me, based on his previous behaviour, and because the evidence which I intend to give to the Court reflects very poorly on him and because there is a lot of money at stake. 20. Without waiver of privilege, I understand from Quinn Emanuel that the Court may put in place special measures to facilitate a vulnerable witness giving evidence in person, including preventing parties from seeing the witness by the use of screens, arranging that the witness enters and leaves the Court room through a separate door and/or accompanied by Court security, and permitting the witness to enter the Court room before and leave it after the remaining trial participants. I am not willing to be in the same room or building as Simon, and no such special measures would provide me with sufficient comfort. If I am required to attend Court in person, then I will not attend to give evidence. Although I did attend the hearing in the Magistrates' Court, that caused me significant anxiety even though Simon was not there in person and I was not giving evidence against him. "21. Without waiver of privilege, I understand from Quinn Emanuel that the Court may permit me to give evidence remotely, via video link, but that any such arrangement would involve informing the Defendants and the Court of the location from which I intend to give evidence. The thought of giving evidence from a location known to Simon (or which could possibly become known to Simon) causes me significant anxiety, and I am not willing to give evidence remotely from a location in the UK, where I believe I would be at considerable risk from Simon.If I am required to do so, then I will decline to give evidence. However, if suitable arrangements can be made to protect me for interference by Simon, I would be willing to give evidence remotely from a country which is neither the UK nor the country where I reside, and to which I would travel for the sole purpose of giving evidence remotely. "22. I wish to make clear that I remain willing to give evidence at trial if suitable arrangements can be made, and that I am prepared to be cross-examined on behalf of the Defendants and answer any questions which the Court may have, notwithstanding my concerns about Simon and his past behaviour towards me. I have no interest in imposing unnecessary conditions in relation to the arrangements for my oral evidence at trial on the parties or the Court. I understand that the default position is for me to attend Court to give evidence in person and that the Court may decide that any other arrangement is not appropriate in this case. However, while I wish to assist the Court, my overriding concern is for my personal safety, which I am not willing to jeopardise." (Emphasis added)
"(a) Mr Wilson will not, whether by himself, directly or indirectly or by any servant or agent, attempt to contact, speak to or otherwise approach Mr Burton; (b) Mr Wilson will not seek to have anyone else contact Mr Burton save for his lawyers; (c) Mr Wilson will not take any steps to have Mr Burton followed from Court or otherwise attempt by himself or by any servant or agent, directly or indirectly, or seek to threaten or harass or to threaten or harass Mr Burton either verbally or physically. During the days in which Mr Burton is called to give his evidence in person at the Court, Mr Wilson will not attend the Rolls Building, 7 Rolls Building, Fetter Lane, London, EC4A 1NL. It would be provided that Mr Wilson will be bound by these promises until30 March 2026 . The Court explained to Mr Wilson the meaning of his undertaking and the consequences of failing to keep his promises."
"44. I turn next to the applicable legal principles. UnderCPR 32.3 , which is a case management power, the Court has discretion to allow a witness to give evidence "through a video link or by other means"
"It is, in my view, incumbent on the Court to ensure that such a directive is made for a good reason and serves a legitimate aim ..." 46. I am satisfied that the requirement of a good reason and that for evidence to be given by video link must serve a legitimate aim and remains the applicable test and remains good law, notwithstanding Mr Matthews' valiant attempts to say that the world had moved on since the views of the Court of Appeal in Three Mile Inn, in particular in a post-COVID pandemic environment. 47. The lie to that submission can be seen, apart from anything else, from Annex 3 toPractice Direction 32 , which is the current applicable guidance. Paragraph 2 is as follows: "
"The widely held misconception that this is unsatisfactory or in some way renders the task of the judge, in sifting truth from untruth, more difficult is being gradually displaced through wide experience. " 51. There is no doubt that video link can be of assistance in suitable cases but the position remains that permission is needed for evidence to be given by video link and good reason must be shown as to why evidence should be given by this method. The position is a fortiori where a witness is an important witness in a trial especially where serious allegations are being made against them, whilst in the present case we are concerned with an admitted condemnor who has found to have lied on oath on repeated occasions. Mr Matthews was unable to identify any authority where good reason had been demonstrated for evidence to be given by live link." (Emphasis added)
"81. …Mr Vik is a contemnor. He is also someone whose evidence has been repeatedly disbelieved. He is also someone who has been ordered to pay indemnity costs on many occasions. And as in that case, it seems to me that the bank is entitled to regard cross-examination over a video link as unsatisfactory. I reject the suggestion that the world has moved on since 2014, when Andrew Smith J expressed such sentiments, not least given the terms of Annex 3 toPractice Direction 32 at [2], which I have already cited. The mere fact that video link evidence is regularly used in proceedings in the Commercial Court and in other divisions of the High Court and that judges have expressed sentiments about the utility of such procedures does not begin to grapple with the situation in a case such as the present and those authorities that have been identified before me, and which I have quoted in the context of an admitted contemnor with a suspended custodial order with terms to be complied with, including attending at Court…"
"The circumstances are that the Further Examination forms part of a detailed set of conditions imposed by the existing Committal Order by which Mr Vik's term of committal was suspended. I am satisfied that the Court's ability to be in control of Mr Vik's evidence, and the likelihood of the truth and accuracy of his evidence being properly tested will be greatest if Mr Vik attends in person. I am also satisfied that it would be wrong to expose DBAG to the risks inherent in Mr Vik giving evidence remotely. Whilst it is true that the video link proposals in the protocol are appropriate steps to take if video link evidence was appropriate,there can be no guarantee that there would not be difficulties arising from the technology during the two days of the Further Examination. Experience shows that notwithstanding the advances in technology over the years, there can still be problems with bandwidth and there can still be time lags, however short. Counsel, particularly enthusiastic Counsel, often ask questions quickly, and on occasions over speak a witness over a video link where the same is not true, or is less likely to occur, when the witness is in person. Witnesses on occasions find the experience more difficult over a video link with a degree of disconnect that is not there when everyone is in person. As is reflected in the Practice Direction (as already quoted above), remote evidence is inevitably not as ideal as having the witness physically in the Court and equally the degree of control the Court can exercise at a remote site is more limited than it can exercise over a witness physically present before it. "
"10. The Defendants rely quite heavily on some case law which has developed during and since the pandemic which demonstrates a greater willingness to accept evidence delivered remotely than has been the case in the past. In fact, perhaps the most helpful of the decisions identified was that of Moulder J, who in April 2022 in Deutsche Bank AG v Sebastian Holdings[2022] EWHC 1555 (Comm) expressed the view that: "
"5. Mr. Naqui in addition to ill health has a fear of arrest or potential arrest if he were to come to this country to give evidence. He was at one time the Chief Executive Officer of BCCI. He has already served two prison sentences, one in Abu Dhabi and the other in the United States, relating to events arising out of the collapse of BCCI. There is, as Miss Grossman points out, no arrest warrant currently issued in relation to him and if he were to be arrested any potential prosecution would relate to events which took place more than fifteen years ago. On the other hand, he has been advised by his American attorneys not to travel to this country in the absence of an assurance from the prosecuting authorities that no prosecution will be brought against him. Such an assurance has not been given and it is very unlikely indeed ever to be given. 6. Mr. Head submits, and I agree, that, rightly or wrongly, Mr. Naqui has a fear of arrest. Is that fear that I think I must take into account. Mr. Naqui’s credit is hotly in issue and no doubt it will be put to him that he is a convicted fraudster and has served prison sentences for those crimes. The question for me is whether those reasons upon which Mr. Naqui relies are sufficient to enable me to make an order permitting his evidence to be given by video link. Miss Grossman submits that it is an essential feature of our legal process that in the absence of exceptional circumstances a witness must come to court to give his evidence so that his demeanour can be fully assessed by the trial judge and so that the court can exert such control as is necessary over the giving of evidence before it. 7. Miss Grossman also suggested that the possible sanction of prosecution for perjury might be another reason why Mr. Naqui should be required to come to court to give his evidence. I discount that latter submission for a number of reasons. The first is that if Mr. Naqui does not come to court his evidence will still be tendered by way of a hearsay statement. Secondly, even if he does come to court and give his evidence he will doubtless be back in Pakistan before the judge gives a judgment or there is any possibility of any arrest for perjury having been made. As to Miss Grossman’s broader submission that it is an essential part of the English legal system that a witness should come to court to give evidence personally, that approach seems to me to be inconsistent with the recent decision of the House of Lords in Polanski v. Conde Nast Publications Limited [2005] 1 AER, 945 . I refer in particular to the speech of Baroness Hale at paragraph 80 in which she said: "
"28. In my judgment, the critical feature in this case is the difference between the evidence being given in court and on a video. When it is said that it is less than ideal, that really matters in this case. The reasons for this are as follows. First, the centrality of Mr Thompson’s evidence to the issues in this case, particularly in respect of causation on the factual case, causation on the counterfactual case and evidence as to quantum. Second, he is the only witness from KPMG Singapore who is giving evidence as to these critical causation issues. Third, there has been an unfortunate history in relation to the production of documents, which entitles the claimant to scrutinise very carefully the veracity of the evidence and to test it as best as they can. Fourth, this is not just about testing on the documents that are currently before the court. The sixth tranche happening in the course of the last few days evidences that there is an evolving picture. There is reason to fear that the drip drip disclosure has not yet finished, and it is possible that it might creep into the hearing itself. When that does happen in a trial, that by itself gives rise to some control issues. Even before then, it is possible that the claimant is entitled to submit that KPMG Singapore has not been engaging adequately with the process and that the mind is best concentrated by the evidence being given in court. Fifth, in this case the evidence is best received with the same conditions for all concerned. It is true that there is an asymmetry between the claimant’s case and the defendant’s case. It is not necessary to go into the nature of that asymmetry, but this is not simply a case of whether a specific event happened that was seen by two conflicting witnesses. It involves issues of fact, and especially the counterfactual matters which can be very difficult for a court to judge. 29. The fairness in this case is that all parties should come away from their home territory into the witness box and face the court. In some cases, that matters much less, but in my judgment on the facts of this case, it matters greatly. This is a case where fairness to the parties and absence of prejudice to the court involves giving the court the best opportunity in order to be able to judge the difficult issues between the parties. 30. For those reasons, I have come to the conclusion that the substantial disruption that coming to London which is involved for both Mr Thompson and for his firm is outweighed as a consideration by the importance to the administration of justice of Mr Thompson giving evidence in court rather than through a video link. 31. I have taken into consideration the submission of the defendant to the effect that the court should consider the possibility that Mr Thompson will not come to court to give evidence in the event that the application is dismissed. It was made clear that the defendant was not giving an ultimatum to the court, but was simply referring to the fact that Mr Thompson is a voluntary witness and it was submitted that in those circumstances there was a real prospect that he may not attend. I regard that as a fanciful possibility on the information currently before the Court – that is to say that the court would be so surprised if that would occur that it is entitled to find that there is no real prospect that it would occur. The reasons for this are as follows. First, in a letter dated6 February 2024 by the defendant’s solicitors, it was said that by that stage Mr Thompson had said that he was willing to give oral evidence, but he preferred evidence to be given by VCF. It was not said that in the event that the evidence was in person, he would refuse to attend. Second, Mr Thompson has not given any evidence to say that he would not attend the court in the event that this application was not allowed. Third, the court can infer that as a major partner of KPMG Singapore, Mr Thompson is used to travelling internationally. Although KPMG Singapore is a separate profit centre, no doubt he would be used to travelling extensively and internationally and would be used to travelling to London and other international centres where KPMG have a major presence. Therefore the possibility of his having to come on this particular trip can hold no particular fears for him. Fourth, Mr Thompson has given extensive evidence of how much reputation means to KPMG Singapore. That was important in relation to the counterfactual case, and it was written in the context of saying that the reputation of KPMG Singapore could not be maintained in the event that Mr Martin, the claimant, remained a partner of the firm. It is entirely consistent with concern about reputational matters that a senior partner of KPMG Singapore would be unlikely to give written evidence to the English court, and then decide not to attend the High Court in London with all the reputational consequences that such a decision might lead to. "
"Vulnerability: 1. The overriding objective requires that in order to deal with a case justly the Court should ensure, so far as practical, that the parties are on an equal footing and can participate fully in the proceedings and that parties and witnesses can give their best evidence. The parties are required to help the Court to further the overriding objective at all stages of civil proceedings. 2. Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. A Court should take all proportionate measures to address these issues in every case. 3. A person should be considered as vulnerable when a factor which could be personal, or situational, permanent or temporary, may adversely affect their participation in proceedings or the giving of evidence. 4. Factors which may cause vulnerability in a party or witness include (but are not limited to) – (a) Age, immaturity or lack of understanding; (b) Communication or language difficulties (including literacy); (c) Physical disability or impairment, or health condition; (d) Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties); (e) The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case); (f) their relationship with a partner or witness, examples being sexual assault, domestic abuse or intimidation (actual or perceived) ... 5. When considering whether a factor may adversely affect the ability of a witness or party to participate in proceedings and/or give evidence, the Court should consider their ability to – (a) understand the proceedings and their role in them; (b) express themselves throughout the proceedings; (c) put their evidence before the court; (d) respond to or comply with any request of the court, or do so in a timely manner; (e) instruct their representative/s (if any) before, during and after the hearing; and (f) attend any hearing. … 7. If the Court decides the parties or witness' ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the Court may identify the nature of the vulnerability in an order and may order a further provision to be made to further the overriding objective. This may include concealing the address under contact details of either party or a witness for appropriate reasons." (Emphasis added)
"Before ordering any ground rules, special measures or other support the Court must consider views expressed by a party or witness about participating in the proceedings or giving evidence."
"Practice direction 1A . 15. As a first step, the court is required to identify if a party or a witness is vulnerable (paragraphs 2 to 4) and then determine if that vulnerability is likely to restrict that person's full participation in proceedings or the ability of that person to give their best evidence (see paragraph 5) in this judgment I will refer to such a vulnerability as a "relevant vulnerability"). 16. If a relevant vulnerability is identified, the Court should "take all proportionate measures" to deal with it (paragraph 2). I will refer to such measures as "protective measures"
"directions" (paragraph 6) and "provisions" (paragraph 7). There is a general discretion to "make provision" but directions can only be made when they are necessary. 17. In line with the need to act proportionately (doing no more than is necessary to address the relevant vulnerability), the court should first consider if a protective measure short of a direction is enough. Such provision may include "concealing the address and/or contact details of either party or a witness for appropriate reasons" (paragraph 7). 18. The Court must then consider "if it is necessary to make directions" to address the relevant vulnerability (paragraph 6). In a straightforward case the Court may conclude that directions are not necessary and that the provisions it has made are sufficient to address the vulnerability. In other cases, both provisions and directions may be required. "