Onecom Group Limited & Anor v Eve Connect Ltd & Ors [2025] EWHC 885 (Comm)

[2025] EWHC 885 (Comm)

Claim No. CL-2024-000468

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTSOF ENGLAND AND WALES

COMMERCIAL COURT (KBD)

Venue The Rolls Building, 7 Rolls Buildings, Fetter Lane

London EC4A 1NL

Date Friday, 4th April 2025

Before

HIS HONOUR JUDGE MARK PELLING KC

(sitting as a Judge of the High Court)

Between

(1) ONECOM GROUP LIMITEDClaimant

(2) ONECOM PARTNERS LIMITEDClaimant

(1) EVE CONNECT LTDDefendant

(2) KM TELECOM LTDDefendant

(3) MR. JAMES PALMERDefendant

(4) MR. KEVIN MITCHELLDefendant

MR. EDMUND NOURSE KC and MR. SIMON GILSON (instructed by Goodwin Procter (UK) LLP) appeared for Claimants.

MR. DERRICK DALE KC and MR. MARCUS FIELD (instructed by Baker & McKenzie LLP) appeared for First and Third Defendants.

Approved Judgment

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[1]This is an application by an application notice dated 30th January 2024, for an order which requires the claimants, within seven days, to file what is described in the draft order as a corrective witness statement, either from Mr. Martin Flick, who is the CEO of the claimants, or, failing that "…a senior employee of Onecom with knowledge of the history of the false statements, the accuracy of whose statement must be confirmed in writing by Martin Flick to be correct to the best of his knowledge and belief explaining in detail how the factual inaccuracies in their evidence and statements of case:(1) occurred; and

(2) were discovered."

[2]As can be imagined, there is something of a history leading to this application, which I must now at least summarise. The facts underlying this dispute are inevitably complex, and it would unduly lengthen this judgment if I were to take up time explaining the detailed minutiae of the claim and counterclaim by the parties against each other. In essence however, the claim arises out of the sale of a business, following which, it is alleged by the claimants, the defendants, amongst other things, wrongfully excluded the claimants from a portal, by or through which the defendants' services were provided, in circumstances where, following the sale, services by the first defendant were to be provided via various subsidiaries to the claimants.

[3]Following the commencement of this litigation, the first defendant's relationship with the claimants decayed further and in the end resulted in the first defendant terminating its relationship with the claimants altogether. This resulted in the immediate cessation of the supply of services by the first defendant to the claimants. In consequence, the claimants issued an application for an interim injunction, the effect of which, if granted, would have been to require the first defendant to continue supplying services until after judgment in these proceedings.

[4]The application notice was dated 13th November 2024, and relevant for present purposes is the second paragraph within Part C, which was to this effect:

"The application is made formally ex parte and Cs will comply with their duty of full and frank disclosure in their witness evidence (as to which see further below), though Cs intend to notify Ds of the hearing in advance. This approach is because of the urgency outlined below and concern as to actions Ds may take to harm Cs’ business if they have extended notice of the hearing."

[5]The application came before Bryan J on 22nd November 2024. At that hearing, he concluded that it was inappropriate for the claimants to seek the injunction it was seeking, without giving the defendants a proper notice to respond to the application. He expressed himself concerned about why the application was a without notice application, and also expressed concern about the timing of it and how it came about, describing apparently the claimants' approach to the application as "not an approach that is recognised by the CPR". He therefore directed that there be an inter partes hearing of the application and gave various directions concerning the provision of evidence, with various holding undertakings being provided by the defendants over until the hearing.

[6]The application was listed to be heard on 18th-19th December 2024. However, on 11th December, the solicitors acting for the claimants wrote to the solicitors acting for the defendants in following terms:

"2. In the course of preparing our clients’ reply evidence for the Application, it has come to light that our instructions were incorrect in relation to whether Onecom sought to conceal the use of the Program from Eve Connect in May 2023. Without waiver of privilege, this came to the attention of Mr Glynn-Jones and the Claimants’ counsel only late on the evening of 10 December 2024. As a result, paragraphs 21.1, 22.2, 22.5, 22.6 and 22.7 of the Claimants’ RDCC were incorrect and the reliance on those paragraphs at paragraphs 73, 82, 109.1 ... and 109.4 of Glynn-Jones 2 was also incorrect. Reliance on paragraphs 20-23 of the RDCC is withdrawn while we and Onecom investigate the extent of the inaccuracies in those paragraphs. As noted below, we will shortly bring forward an amended RDCC. "3. An additional point has arisen, again in the context of preparing the Claimants’ reply evidence for the Application, concerning the frequency of Onecom Partners’ use of Customer logins to access the Portal. Onecom’s investigations in this regard are ongoing, but it appears that the characterisations of this use as 'on occasion' in Glynn-Jones 2 at paragraphs 82.2 and 91 (which were drafted on instructions) and 'ad hoc' in Craggs 1 at paragraph 28 are likely to be inaccurate, and that use of Customer logins within Onecom Partners to access the Portal was more widespread than Mr Craggs understood at the time those witness statements were given. "4. We and Onecom regret the above inaccuracies. We will be filing a short, corrective statement with the Court as soon as possible, to correct the record. "5. In light of the above, the Claimants will not pursue the Application. We therefore invite you to agree that the Hearing be vacated. We enclose with this letter a draft Order for your consideration. The draft Order provides that all parties be released from their undertakings and that the Claimants agree to pay the Defendants’ costs of the Application, to be assessed if not agreed ..."

In the end, an order was agreed, broadly in the terms proposed, but with the claimants paying the defendants' costs of and occasioned by the injunction application on the indemnity basis.

[7]The next day, on 11th December, Mr. Oliver Glynn-Jones, the solicitor and a partner in the firm of solicitors acting on behalf of the claimants, provided the promised corrective evidence. At paragraph 8 of his witness statement he said this:

"I make this witness statement on my and on the Claimants’ behalf pursuant to my duty as the solicitor on record, having discovered that false or inaccurate evidence has been put on the file, to put the matter right and correct the errors at the earliest opportunity. Accordingly, in this statement I correct the inaccuracies that I am now aware of in the Claimants’ Amended Reply to Defence of the First and Third Defendants and Defence to Counterclaim dated 3 May 2024 (the 'RDCC'), in Glynn-Jones 2, in Christian Craggs’ first witness statement dated 18 November 2024 ('Craggs 1'), to which reference was also made in the Claimants’ skeleton argument for the hearing on 22 November 2024 ..."

Mr. Glynn-Jones then turned to the errors highlighted in the correspondence referred to a moment ago. The "Program" he refers to is a program which was used, as I understand it, to obtain access to the portal, the role of which I have already explained. Under the subheading "Errors in the Claimants' evidence relating to the Program", Mr. Glynn-Jones stated as follows:

"First, in the course of preparing the Claimants’ reply evidence for the Application, it has come to light that my firm’s instructions were incorrect in relation to whether Onecom sought to conceal the use of the Program from Eve Connect in May 2023. Without waiver of privilege, the matter first came to my attention (and that of the Claimants’ counsel team) late in the evening of 10 December 2024. We continued to investigate the issue on the morning of 11 December 2024. We wrote to the Defendants informing them of the inaccuracies and the fact the Claimants would be withdrawing the Application by letter on 11 December 2024 ... "12. In short, it is now apparent that, contrary to paragraphs 22.2, 22.5, 22.6 and 22.7 of the RDCC, at least one employee of Onecom Partners was seeking, in May 2023, to conceal Onecom Partners’ use of the Program from the Defendants. Accordingly, my reliance on those paragraphs of the RDCC at paragraphs 73, 82, 109.1 ... and 109.4 of Glynn-Jones 2, and reliance on the same at paragraph 35 of the Claimants’ Skeleton was also incorrect ..."

In relation to the claimants' evidence, and under the subheading "Error in the Claimants' evidence in relation to the frequency of use of Customer logins to access the Portal", materially Mr. Glynn-Jones stated this:

"15. Without waiver of privilege, on or around 28 November, I became aware that it was possible that usage of Customer logins to the Portal had been in the past more widespread than could fairly be described as occasional. The precise nature and extent of the use was, and remains, unclear, because it is difficult to establish the occasions on which access was actually obtained to the Portal. Further investigation into the issue is ongoing but it does appear that the assertion (made on instructions) in Glynn-Jones 2 that access occurred only 'on occasion' is incorrect. Reliance on this assertion is therefore withdrawn and, as a matter of prudence, reliance on the reference in Craggs 1 to use being 'ad hoc' is also withdrawn."

A draft amended reply has been produced, the contents of which I do not propose to set out in this judgment, but which is corrective broadly in line with the contents of the evidence to which I have referred. As I have said, the injunction application was then withdrawn, the claimants agreed to pay the defendants' costs to be assessed on the indemnity basis, and thereafter, the defendants issued the present application.

[8]Broadly speaking, there are three issues which arise of principle that arise. The first is whether the court has jurisdiction to make the order sought at all; secondly, whether, assuming that the court has jurisdiction, the court should, as a matter of discretion, make the order sought; and, thirdly, in the event that, as a matter of discretion, it is in principle appropriate to make an order sought by the application notice, whether any order should not merely require an explanation of how the errors came to be made originally, but also how they came to be discovered, an issue which acutely engages at least potentially the issue of litigation privilege.

[9]Turning first to the jurisdiction issues that arise. The application is made exclusively by reference to CPR r. 3.1(2)(p). CPR r. 3.1(2) is concerned with the general powers that the court has to manage the litigation commenced before it. It provides, insofar as is material:

"Except where these Rules provide otherwise, the court may ... (p) take any ... step or make any ... order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case."

It is perhaps appropriate to remember that CPR rule 1.1(2) provides that the overriding objective is to deal with cases justly and at proportionate cost, and that CPR rule 1.1(2) identifies, as included within that concept, at (b), the saving of expense, at (d), ensuring that cases are dealt with expeditiously and fairly, at (e), allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases, and at (f), enforcing compliance with rules, practice directions and orders.

[10]The principles which apply in relation to the exercise of the powers contained in CPR r. 3.1(2)(p) need to be clearly understood. Although the rule is drafted in wide terms, the orders that can be made under it are exclusively for the purposes of managing the case and furthering the overriding objective. This principle has been considered in a number of cases, of which two have been drawn to my attention. The first is XYZ v Various [Companies]

[2013] EWHC 3643 (QB)

; [2014] 2 Costs LO 197, which was an issue which arose concerning the disclosure of an after the event insurance policy in the context of some group litigation. In that case, Thirwell J (as she then was) concluded that there was no jurisdiction under what was then rule 3.1(2)(m) to order a party to provide information as to whether or not it could meet an award of damages as to costs, but could, where the case otherwise merited, direct disclosure of a policy for the purposes of enabling a court to manage the litigation, on the basis of adequate information as to whether or not the party concerned could comply with directions which were being sought.

[11]The importance of bearing in mind this qualification, which has been followed in subsequent cases, is emphasised by the judgment of the Court of Appeal in QX v Secretary of State for the Home Department

[2022] EWCA Civ 1541

, where the court drew attention to the general rule that a court cannot require, in relation to the substantive issues to be determined at trial, a party to call a particular witness who that party does not wish to call but concluded that an order could be made under the provision I am now considering made requiring a party to provide a witness statement, where the witness statement was relevant to a case management issue.

[12]However, the case manangement issue must be at least the primary purpose of the order sought - see RBS Rights Issue Litigation

[2017] 1 WLR 1991

, where the principles were addressed by Hildyard J. He concluded that an application for the disclosure of an ATE policy should be refused in the circumstances of that case, because(i) it could not be demonstrated that there was a case management purpose that was anything other than ancillary to the real purpose of obtaining the information, which was for enforcement of any judgment and

(ii) in any event the order for disclosure would invite satellite litigation, and

(iii) in the circumstances the order sought was not justified. His conclusion, however, was that the order sought should be refused even though there was an ancillary case management purpose in seeking the order. The substance of what he concluded in that case starts to be set out in paragraphs 104 and 105 of the judgment. At paragraph 104 he said, following Thirwell J's decision in XYZ referred to a moment ago:

"I have no doubt that in an appropriate case, exemplified by the XYZ case and subject to the limitations apparent from Thirwell J's decision ... the court's case management powers under CPR r 3.1 do extend to requiring disclosure of an ATE policy when its disclosure is necessary to enable the court proportionately and efficiently to exercise its case management function."

However, Hildyard J defined what was meant by "case management function" at paragraph 105 of his judgment in these terms:

"... in my view the court should not be quick to cut down the general power of case management by reference to other provisions directed to other matters. A sufficient control is provided, as in the XYZ case, by being careful to apply the case management power only to what is genuinely a case management issue, rather than by reference to some general mantra, be it 'cards on the table' or the like."

As he concluded on the facts of that case, at paragraph 114. "... the first question becomes, therefore, whether on true analysis the defendants are seeking to invoke a case management power in aid of the proportionate, expeditious and efficient management of the proceedings; or whether they are in reality seeking disclosure with a view to enforcement or some other objective not amounting to case management in the proper sense (reflecting the distinction drawn in the XYZ case)."

[13]In my judgment, that is essentially the approach which must be adopted in relation to the present application and applying that approach what is being sought on this application is not “… in aid of the proportionate, expeditious and efficient management of the proceedings…” My reasons for reaching that conclusion are as follows

[14]The approach of the respondent and its solicitors to the events that have happened has been entirely conventional and orthodox and accords with the practice that hap applied to such situations for many years. It balances the need fully and frankly to disclose what has occurred whilst preserving litigation privilege. This has been the approach since at least 1940, when Myers v Elman

[1940] AC 282

was decided. In that case, in a judgment which is very frequently cited in this arena, and which has guided the practising profession down the decades since it was decided, Viscount Maugham said in relation to the sort of situation which arose in this case:

"But suppose that, before the action comes on for trial, facts come to the knowledge of the solicitor which show clearly that the original affidavit by his client as defendant was untrue and that important documents were omitted from it, what then is the duty of the solicitor? I cannot doubt that his duty to the plaintiff, and to the Court, is to inform his client that he, the solicitor, must inform the plaintiff's solicitor of the omitted documents, and if this course is not assented to he must cease to act for the client. He cannot honestly contemplate the plaintiff failing in the action owing to his client's false affidavit. That would, in effect, be to connive in a fraud and to defeat the ends of justice. A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act as solicitor upon the record. The duty of the client is equally plain ..."

[15]Mr. Dale KC, on behalf of the applicant defendants, relies upon the last sentence in the quotation set out above as broadening the duty which would otherwise apply to a solicitor in this circumstance, as one that applies to the client as well. I agree that is a correct analysis of what Viscount Maugham said in the quoted passage of his judgment referred to a moment ago. However, it begs the question what "duty" or its scope that is being referred to? In my judgment, the duty that was being referred to and the scope of that duty is that which was identified by Viscount Maugham in the passage I have quoted as applying to a solicitor, which is a duty to correct at the first opportunity a false affidavit, which has been innocently placed on the file of the court papers, and which has been subsequently discovered to be certainly false.

[16]Some reliance was placed by Mr. Dale on Bell v Dunmore (1844) 7 Beav 283, a decision of the Master of the Rolls. There are a number of points which need to be made about that case. First of all, the report is characteristically laconic for that period in legal history. Secondly, it not merely predates the Civil Procedure Rules, but it predates the Judicature Acts and seems wedded to the old forms of pleadings, which disappeared in 1870, when the Judicature Acts took effect. The case was concerned with an application for leave to file a supplemental answer to correct an erroneous date in the original answer that had been filed. The purpose of the exercise was to correct a mistake in the original answer by substituting 1826 for the date 1827 in a particular paragraph of the relevant document. The Master of the Rolls, Lord Langdale, considered the application originally, and what he directed was:

"The object of the Court is to allow neither party to obtain a victory at the expense of truth. There must be an affidavit of the truth of the intended answer and of the terms in which it is proposed to file it."

There was, thus, a direction at that stage for an affidavit to affirm as true the proposed correction. This accords broadly with the approach in Myers v Elman (ibid). When the matter came back before the court, the Master of the Rolls identified that when the cause came on for trial, it would be important to ascertain whether the relevant event had occurred in 1826 or 1827 and then said this:

"I should be sorry to let fall a word which might imply that the Court considers it a trifling matter to allow a party who has solemnly declared one thing, to put in a second answer quite inconsistent with his former solemn statement. I have felt it necessary to require the party not only to account for the mistake, but to produce the answer in the very terms and words he pledges himself to swear it. Not being satisfied on a former occasion the case stood over."

What the Master of the Rolls is reported to have said in that paragraph is different from and rather more extended than what earlier in the report he is reported to have done initially. That makes it difficult to rely too heavily upon this authority for any purpose relating to the conduct of modern commercial litigation. I would say, however, that if and to the extent the case is authority for some general common law proposition that the court can or should order the filing of an affidavit which not only corrects an error however it was made but also gives an explanation as to how it was that a false or wrong statement came to be filed, then it is not one that I should follow, since I am bound by and should follow the later decision of the House of Lords in Myers (ibid) which, in my judgment, sets out comprehensively what the modern practice is in relation to situations of this sort.

[17]Some reliance was placed on two other authorities by the applicant. One, a decision at first instance by a Deputy High Court Judge sitting in the Chancery Division and the other a decision of the High Court in Ireland. Dealing first with the Chancery Division decision, the case is Original Beauty Technology Co Ltd v G4K Fashion Ltd

[2021] EWHC 3439 (Ch)

; [2022] E.C.D.R 18. The proceedings before the Deputy Judge, Mr. David Stone, was as to the assessment of damages in an intellectual property dispute, where the assessment was concerned with what a reasonable royalty rate would have been had there been a lawful use of the relevant intellectual technology. At paragraph 23 of the judgment, the deputy judge identifies a Dr. Branney, who was described by counsel for the claimants as "a dishonest litigant and witness", and whom the judge concluded, at paragraph 23, was a dishonest witness, whose evidence was not to be believed unless corroborated by independent means (such as contemporaneous documents). What I have said so far emphasises that what this case is concerned with is the evaluation of evidence at a trial. The issue which is potentially relevant for present purposes starts at paragraph 47, where the judge turned to the evidence of Dr. Branney and said this:

"... by the time Dr Branney (a) signed his fifth witness statement; (b) signed the Amended Defence to the Points of Claim; and (c) gave his oral testimony under affirmation, he was well aware that his affidavit and witness statements were wrong and misleading and that the statement that sales had ceased in January 2019 was wrong, and he chose not to correct those errors in a way which would have been readily perceptible by the Claimants. It is also, regretfully, my finding that those omissions were dishonest."

Thus, what that case was concerned with was a situation where Dr. Branney had failed to comply with the duty that the House of Lords in Myers (ibid) had identified as being the duty he was required to comply with in the circumstances identified by the judge. That is of itself a sound ground for distinguishing this case from those that would apply in the circumstances of this case, and which are covered by the general principles identified in Myers (ibid).

[18]The judge continued by making the point at paragraph 48 that Dr. Branney had taken an affirmation on giving his oral testimony to tell the truth, the whole truth and nothing but the truth, but said:

"Dr. Branney has not done so. He has failed to comply with his affirmation. He was not honest with the court until asked specific questions about the additional sales. He had plenty of opportunities to come clean about the errors, but chose not to do so. I therefore find that his evidence is not to be trusted and I will accept it only where the claimants wish to rely on it, or it is corroborated by an independent source ..."

That case is significantly different from the present, therefore, because that case was concerned with the evaluation of evidence at trial, and was concerned with the manifest failure on the part of Dr. Branney to comply with his Myers duties, to which I have referred earlier in this judgment. Against that background,

the judge then said this:

"Mistakes sometimes occur, but when a material mistake in a pleading, an affidavit or a witness statement, is discovered, the relevant parties and/or deponents, have a duty to bring that mistake to the attention of all other parties and the court as soon as practicable. What should have happened in this case is that, having discovered the additional sales on 26th September 2021, the defendant should have written through their solicitors to the claimants, setting out the errors and then sought to agree a way forward, which may have included amending pleadings -- this at least was done on the final day of the inquiry -- and a further witness statement setting out in detail how the error occurred and how it was discovered."

A number of points arise from that paragraph. First, it reflects what I have already said, which is the judge was addressing a situation where Dr. Branney had failed to comply with his Myers duties as the judge identified expressly in paragraph 49. The remaining contents of that paragraph, as I read it, is hypothetical, addressing what the parties might have done, had the defendants complied with his Myers duties. This judgment is not, therefore, authority for the proposition that the court has jurisdiction or at any rate should as a matter of discretion make an order such as is mentioned in paragraph 49, not least because none of the submissions which have been made in this case were apparently considered and no authority was identified by the judge that would have justified such an approach. This is unsurprising, at any rate to my eye, since the judge was not purporting to give a comprehensive ruling on what should happen in particular circumstances, but was articulating a hypothesis as to what might have happened. His focus was on his evaluation of the credibility of the witness concerned, following his cross examination. In other words the judgment says nothing about what should happen in circumstances such as this, nor did it need to in the circumstances.

[19]The other case that is relied upon by the claimants is the decision of the High Court of Ireland in IBB Internet Services Limited, Irish Broadband Internet Services Limited (trading as Imagine Networks) and Imagine Communications Group Limited [2013] IEHC 541, a decision of Charleton J. The issue that arose is one which is concerned largely with the procedural steps which are required to be taken in Irish commercial litigation, at any rate at that time. Therefore, some care needs to be taken in approaching the issues which are identified in the judgment. As the judge pointed out at paragraph 5, "The latest motion concerns interrogatories." He then pointed set out in paragraph 5, the scope of interrogatories permitted in commercial cases in Ireland and then identified that a particular error had occurred. He then set out the relevant law, before at paragraph 11 saying this:

"Since interrogatories tend to be directed towards both general questions in the case and also to specific fact, it is incumbent upon a company secretary, or a director or liquidator of the company, in answering interrogatories, to make all reasonable enquiries from the present and past officers and servants of the company so that the answers will reveal what was known to the company ..."

[20]There was then a citation of some English authority from the early 1980s, which I need not take up time describing, other than to say that it was concerned with an English rule, which applied when interrogatories were available as a matter of English procedure, that the court had discretion as to whether to order further answers to interrogatories and whether the appropriate remedy in that context was to order either the filing of an affidavit or an oral examination before the court in order to address inadequacies in the response.

The judge then went on as follows:

"In Matthews and Malek - Disclosure (fourth edition) ... the authors offer the view that where a response has been filed, that an interrogatory should not be changed without filing a correction; and that is said to be appropriate only with a witness statement explaining the need for the correction. A corrective affidavit is said to be permitted only with the consent of the parties. It is hard to see that practice being desirable in every case. The discretion of the court as to the order the court makes under this rule is undoubted. The circumstances under which a party may make an error in answering interrogatories can vary between thought-through, cunning or structured lies, at one extreme, to simple errors due to the multiplicity of material, difficulty in obtaining instructions or typographical and referencing errors, all of which are clearly at the other end of the spectrum. It is appropriate for a party who notices that answers to interrogatories are incorrect to immediately take steps to correct the answers and to offer a general explanation as to how this occurred. There should be immediate notice to the opposite party. If there is to be a change of factual narrative by reason of a ledger being checked or a computer record being noticed for the first time, or an agent being finally contacted who is able to give a materially different account of events, then this should be noted in the furnishing corrected interrogatories. These are errors, the explanation for which can be in aid of proof."

The judge then went on to consider how that may be applied, before saying this:

"The proper course ... is for this to be done in a timely and efficient manner as part of the cooperation that is expected of solicitors in bringing a case efficiently to trial. Clearly, the more germane the explanation, the more readily the issue can be finally thus disposed of in aid of efficiency in litigation. Where the errors occurred by reason of not following the obvious procedure of producing each question and then answering each question ... then that is really all that needs to be said. That assertion may be challenged in testimony, as to how such mistake could be made; but it seems that any reasonable person can see that the procedure currently adopted in our courts of answering hundreds of questions on three different documents solely by reference to number and sub number is likely to lead to this kind of error ..."

[21]In my judgment, there is nothing within this authority which would justify an English court going further than the procedure identified in Myers in relation to the issues that arise. Even assuming that in principle what is said in that case was capable of applying to errors and omissions in an affidavit or witness statement filed in support of an application for an injunction, the requirement “… to offer a general explanation as to how…” the errors occurred is not one that is justified on the present state of the English authorities. There is no authority cited within the judgment which supports the proposition that a court should require an explanation either as to how the error occurred or how it was discovered. It is likely that at least potentially such a requirement will come into conflict with the availability of litigation privilege and as a result obvious risk of significant satellite litigation at significant additional cost and use of court time. In my judgment the correct course remains that identified in Myers (ibid), with issues concerning how and why the errors occurred or came to light being left for cross examination at trial subject to the rules that apply in relation to cross examination on credibility or other collateral issues.

[22]In those circumstances, I return to the first question which arises, which is whether or not there is any jurisdiction to make the order sought. In my judgment, there is none under CPR 3.1 on the facts of this case because there is no case management reason which would lead to the conclusion that such an explanation was required and nor is there anything within the over-riding objective which would justify making such an order either. The over-riding objective requires cases to be dealt with justly and at proportionate cost. That is achieved where an erroneous affidavit or witness statement is filed by the party and that party’s solicitors complying with their respective Myers duties. Once that has occurred there is no further case manangement issue that remains. The court will need to become involved if it should emerge that errors of the sort that can arise have arisen, but the Myers duties have not been complied with for the purposes of giving effect to the overriding objective, and perhaps also, at least arguably, for case management purposes by directing the filing of corrective material as happened for example in Bell v Dunmore (ibid). However, once that duty is complied with, there is nothing that would justify a court ordering an explanation to be provided on oath as to how an error occurred or how the making of the error was discovered on case management grounds or for the purposes of giving effect to the overriding objective. The overriding objective requires the court to ensure that cases are dealt with expeditiously and fairly and at reasonable cost. Fairness requires that the error that has arisen is disclosed and corrected promptly, and that is what has occurred. Becoming involved in the filing of evidence as to how the error occurred or how it was discovered will add to the cost of litigation, add to the length of time needed to dispose of it in relation to an entirely satellite and collateral issue which risks generating significant difficulty associated with the impact of litigation privilege as disclosure by reason of what might be set out in any affidavit or witness statement ordered. None of this is either necessary desirable or proportionate, because(i) how (and why) the error occurred or was discovered are collateral issues that can be explored if at all in cross examination at trial,

(ii) what is sought (a) does not engage any case management issues at least on facts such as those in this case and (b) is not required in order to give proper effect to the overriding objective. Directing an affidavit or witness statement in the terms sought on this application in the circumstances of this case would, in my judgment, is not something the court has power do so by reference to the Rule on which the applicant relies and go far beyond what is legitimately to be expected on the cases that have been identified to me.

[23]Even if I am wrong and I should have concluded that at least in principle the court has available to it a power to direct a party to file a witness statement explaining how an error occurred, or how it was discovered, then the circumstances in which that power should be exercised will be rare and require enormous caution, for all of the reasons which have been identified already. In those circumstances, on the facts of this case, I would not have exercised such discretion as I had to make the order sought because it is unnecessary, disproportionate, risks generating significant additional cost and delay (particularly by reference to the scope and impact of litigation privilege) in relation to a satellite issue in respect of which disclosure would generally not be available and which should generally left for cross examination at trial subject to the rules concerning cross examination as to credit and in relation to collateral issues and where the evidence sought would not satisfy any sensible case management purpose. In relation to the second part of what is sought, namely an explanation as to how the errors came to be discovered, that will inevitably l engage very acutely the issues of privilege to which I have referred already and in a way which will become enormously difficult to control.

[24]In those circumstances, I conclude in summary that(i) the court does not have power to make the order sought by reference to the provision within the CPR relied on; but if that is wrong

(ii) such an order should be made as a matter of discretion only in exceptional circumstances, where there is a clearly demonstrated case management need to make it and

(iii) here specifically no such order should be made because no case management need has been identified as the primary purpose of the order sought and because any legitimate case management purpose that might have arisen having been satisfied by the expeditious compliance by the respondent and its solicitors with their Myers duties.

[25]In those circumstances, the application fails. - - - - - - - - - - -