Axnoller Events Ltd v Brake & Anor (cross-examination on a draft witness statement) (2021) EWHC 2539 (Ch)
I don’t know how many of you have been following the Axnoller v Brake litigation (parties vary, but are basically the same). I suspect not a lot. If you are in need of a hobby, or have a couple of weeks holiday with nothing planned, can I commend it to you? There are now well over 20 judgments on Bailii in the many and varied aspects of the intertwining cases, nearly all of which present something to wonder at (and in some ways learn from, often in a ‘don’t do that’ kind of way). For those of us who have been trying to keep up, it has become like a long running TV series, like Friends, for example.
I’m not going to go into any detail – it is impossible to even attempt summary. This is litigation beyond the powers of précis. But here, in roughly chronological order are a few select episodes, if this is a rabbit hole you chose to go down. I deny any responsibility or liability if you do.
The one with the first recusal application – https://www.bailii.org/ew/cases/EWHC/Ch/2020/1156.html
The one with the un-revested cottage – https://www.bailii.org/ew/cases/EWHC/Ch/2020/1810.html
The one with the personal email accounts that weren’t – https://www.bailii.org/ew/cases/EWHC/Ch/2021/671.html
The one where counsel mysteriously vanish, with unspecified allegations about the Judge –https://www.bailii.org/ew/cases/EWHC/Ch/2021/828.html (I think there are serious practice points in this one and the subsequent decision that haven’t really been addressed.)
Double episode of the one with the second recusal application and the one with the £2.8 million gift – https://www.bailii.org/ew/cases/EWHC/Ch/2021/949.html
The one with the mental health crisis moratorium – https://www.bailii.org/ew/cases/EWHC/Ch/2021/1500.html
The one with the application to cancel the moratorium (we’ve seen this one) – https://nearlylegal.co.uk/2021/09/cancelling-a-debt-moratorium-some-issues/
The one with the application for a free hardcopy bundle – https://www.bailii.org/ew/cases/EWHC/Ch/2021/671.html
That brings us to the present judgment. The context is that there are two trials taking place, more or less back to back. A possession claim (Axnoller v Brake) and an eviction claim (Brake v Axnoller). There will be one judgment covering both trials, probably in late October. Frankly, my dears, I am on tenterhooks.
The brief background to the possession claim, in the course of which the need for this judgment arose, is:
In broad terms, I can simply say that the Brakes had originally bought the property at West Axnoller Farm and had lived there. It had then become partnership property in a partnership with an outside investor. The partnership had broken down. The Brakes were eventually made bankrupt, and the receivers appointed by the bank which had lent money on the security of the property enforced the security by selling the property on behalf of Mrs Brake. It was sold to a company called Sarafina Properties Limited. Subsequently Sarafina Properties Ltd itself was sold to Chedington Court Estate Ltd (which belongs to Dr Geoffrey and Mrs Kate Guy), and changed its name to AEL (Axnoller).
The Brakes were retained by the Guys to continue to run a business at the property, but the relationship between them broke down, and the employment of the Brakes was terminated in November 2018. When the Brakes did not vacate the property, these possession proceedings were brought. The claim form was issued on 19 November 2018, and the first hearing of the claim took place at Yeovil County Court on the morning of 27 November 2018. Mrs Brake was in fact ill at the time of the hearing, and was not at court on that day. But her husband, Andrew Brake, was at court for that hearing, with their counsel Daisy Brown.
In the current possession trial, Axnoller (‘the Guys’) wanted to cross-examine Mrs Brake (Nihal Brake or Alo Brake) on the contents of a draft witness statement, in her name but unsigned, dating to the time of the first hearing of the claim on 27 November 2018. A copy of the draft statement was indeed in the current trial bundle.
Mrs Brake objected strongly to this, on the basis that it was a privileged document that had not been disclosed. The Guy’s case was that the draft statement had indeed been disclosed by being handed to their counsel at the hearing of 27 November 2018. Thus there was a mini trial on the events of 27 November 2018.
As Mrs Brake hadn’t attended the hearing, because she was ill, and the Guys hadn’t attended, this somewhat surreally came down to witness evidence from Mr Brake, who had attended, the then counsel for the Guys, Mr Mohda, and emails from then counsel for the Brakes, Ms Brown (one of the mysteriously vanishing counsel from before) as to what actually happened at the hearing of 27 November 2018.
On counsel giving factual evidence:
Mr Modha was in fact cross-examined on his witness statement by Mrs Brake. I should say that I did take time briefly last week to look at some authorities on the question of counsel giving evidence at a trial of matters with which he or she has been concerned as counsel, and I circulated some of those authorities to the parties: Hickman v Berens (1895) 2 Ch 638, Wilding v Sanderson (1897) 2 Ch 534, and Appleby v Errington, The Times, 22 October 1952. The last of these is a rather extraordinary case, where it was not just counsel that gave evidence, but also the trial judge (now an appellate judge, Hodson LJ). He gave evidence as to what had happened at the trial. So did the two counsel, one of whom had since become a High Court judge (Karminski J), and the other was in fact subsequently to become a rather famous barrister, Mr John Mortimer.
It is clear from those authorities that there is no objection in principle to counsel providing evidence of what has happened in a matter with which they were concerned professionally. Exactly how that evidence ought to be elicited must depend on the circumstances. In the present case, what has happened is that Daisy Brown’s evidence has been given in the form of emails, which are obviously not evidence on oath or supported by a statement of truth, but they are given by a member of the bar and I am not going to impugn the veracity of a member of the bar who tells me that this is what happened (cf Appleby v Errington, per Vaisey J). As it happens, Mr Modha went into the witness box and took an oath and was indeed cross-examined, and of course I have had the opportunity therefore to consider him in somewhat greater detail than if he had simply put in the written statement. I will come back to this question later, but it seems to me that, in circumstances where Mr Modha was prepared to be cross-examined on his witness statement, I should permit that, so that is what I have done.
On Mrs Brake’s side, there were emails from her subsequent solicitors saying that – despite a mention in the defendant’s later disclosure list of documents of a “Witness statement of first defendant (inclusive of exhibits), 26 November 2018.” – no such document had been requested by or provided to the claimant and that there was nothing in the previous solicitor’s file to say it had been disclosed (the Brakes have had quite a few solicitors).
There were emails from her then counsel, Daisy Brown, although not in the form of a witness statement and without a statement of truth, saying:
“Hi Justin, I have had a look back at emails from the hearing in November 2018. There is a draft witness statement which is obviously draft with blank brackets in it and not signed. I do recall using it for my own purposes as it provided some background, but it was not served on the other side and was not relied on in court. I’m afraid I do not know how Niraj Modha had a copy of it. This has never been referred to before within these proceedings.
Mrs Brake was not in court on 27 November and had a GP email dated 25 November that she was very unwell. I believe that the proceedings were only served two days before the hearing so it isn’t clear who was involved in the drafting of the statement.
That probably is not enormously helpful, but please do forward this on to Alo.
And then, the day before this hearing
Please could you forward this email to Mrs Brake. I have been back to look at the contemporaneous note of the 27 November 2018 hearing which I sent to Porter Dodson, but this does not refer to the draft witness statement. I also have the skeleton argument that was filed the day before the hearing which does not refer to the draft witness statement. Therefore, relying on memory alone of what transpired before and during the hearing, to the best of my recollection:
1. I had one copy of the draft witness statement with me;
2. This had not been filed and no copy was given to District Judge Davis before or during the hearing. The hearing was listed for five minutes, although it went on for slightly longer than that. It would not be my practice to hand to a judge an incomplete and unsigned witness statement.
3. Mr Modha did not ask to take a photograph of the draft statement or take a photograph of it that I saw. This would have been an unusual and alarming request and I would have thought I would have refused had he asked but I do not recall that he did.
4. I have no recollection of giving Mr Modha my copy of the draft statement to read. Again, this would have been an unusual thing to do, bearing in mind it was incomplete and unsigned. It is not my practice to give incomplete witness statements to opposing counsel to read.
Then the email timed at 13.10 yesterday:
“Thanks so much, and sorry for doing this at the weekend. I’m afraid I have one more note following my trawl through emails on 27 November. I don’t know how relevant this is, but
(a) the time listing was in fact ten to 15 minutes, not five, but I cannot say how long it actually lasted;
(b) I had a recollection that I spent most of the time before the hearing trying to sort out getting a hard copy of the skeleton to the judge because I did not have a working printer at home. I can now see an email that shows that you, Justin, sent the skeleton argument and cost schedule to the court office in the morning of the hearing whilst I was waiting so they could print it out to give to the judge.
Please could you also send this on to Mrs Brake in case it is of relevance.
The witness statement of Mr Brake stated:
“2. The hearing of 27 November 2018 was the first hearing of what has now become known as the house possession proceedings.
3. I went alone to court because Alo, my wife, was ill.
4. I went into the waiting room where I met with Ms Daisy Brown of counsel for the first time.
5. The waiting room in Yeovil County Court is a long narrow room, about 20 metres long by 5 metres wide.
6. Ms Brown and I sat down at the far end of the room and had an introductory meeting. She had some pieces of paper which she referred to.
7. Ms Brown said that she had noticed a gentleman who she thought was her opposite number at the other end of the room but sitting on the same side of the long narrow room. I now know that the gentleman in question is Mr Modha.
8. Having spotted him, Ms Brown said, ‘I must go and introduce myself’, and then went off to the other end of the room and had a very brief conversation with him. I cannot recall if she took any papers with her. I did not hear what they said as I was too far away. I did not see her hand over any paperwork.
9. Ms Brown returned. Her only comment to me was that she was upset and that he had been ‘unpleasant’ and that it was ‘just not necessary’.
10. She then said she had to pop to the loo. She left her bag next to me.
11. A couple of minutes later I decided to go to the gents. I did not take her bag with me as I was only in the loo for a couple of minutes.
12. I am absolutely certain that I did not see Mr Modha taking photographs of any papers. I am also certain that he was not sitting opposite me. 13, I do not recall much about the hearing itself, except that the judge did say they had to amend their pleadings and I do recall Ms Brown brought to the judge’s attention AEL’s harassment of us and the judge said if it continued we were to come back to get an injunction.”
Ah, the ‘counsel’s bag was left unattended for at least two minutes’ implication. Or, as the court put it on Mr Brake’s evidence:
He was of the opinion that counsel Mr Modha was lying, although that may simply be an impression on his part. I cannot take his own opinion as justifying any conclusion which I might reach independently on the material before me.
For Axnoller/the Guys, their then and current counsel Niraj Modha stated in a witness statement:
“6. On Tuesday, 27 November 2018, I attended the first hearing in these proceedings. The hearing was listed for 10 am in the County Court at Yeovil. I had been instructed by Radius Law Limited to represent the claimant at this hearing.
7. At approximately 9.30 am on the day of the hearing mentioned above, I met Ms Daisy Brown, who was counsel for the first and second defendants, in the waiting area of the court building. Neither of our instructing solicitors was present. Mr Andrew Brake, the second defendant, was also at court. The first defendant was not present. The third defendant did not attend the hearing. At this hearing he was not represented. He has since been removed as a party to these proceedings.
8. I introduced myself to Ms Brown as counsel representing the claimant. Ms Brown told me that she represented the first and second defendants. I asked Ms Brown whether she had a skeleton argument that she could exchange with me and whether she was relying on any evidence. She said that she had both a skeleton argument and a draft witness statement. She said that she only had one printed version of each document. She said that she had already provided her skeleton argument to the court. I was neither shown, nor provided with, a copy of her skeleton argument. I provided Ms Brown with a printed copy of my skeleton argument.
9. Ms Brown told me that she intended to hand up the draft witness statement to the judge who would be hearing the claim. I asked her if I could see this document before the hearing. She gave this document to me. She said that she would need this document to be returned to her before the start of the hearing in order that she could provide it to the judge.
10. I sat down in the waiting area to read the document.
11. After I had finished reading the document, in order to save the time and cost of photocopying, I took individual photographs of each of the seven pages of the draft witness statement on my mobile phone. I did this whilst sitting opposite Ms Brown and the second defendant in the waiting area of the court building. I then attached these photographs to an email that I composed and sent to the solicitor who at that time instructed me on behalf of the claimant.
12. The photographs that I took on 27 November 2018 have been printed and reproduced in the trial bundle at C1, tab 24, 105 to 111. The email to which I have referred in the paragraph above is exhibited to this witness statement at exhibit NM1/1. The photographs of each page of the document which were attached to that email are exhibited at exhibit NM1/2-8.
13. I returned the document to Ms Brown by hand shortly before 10 am. The hearing took place later that morning.”
Mr Brake and Mr Modha gave evidence and were cross-examined.
There was no transcript of the hearing, but the transcript of a subsequent hearing suggested that the draft statement had not been handed up to the judge. Mr Modha agreed in giving evidence that it had not been.
The Court held
This was a first hearing of a part 55 claim. No defence had been filed. It was therefore the case that to support an adjournment with directions request. It was therefore necessary for the defendant to at least raise the prospect of a defence. It was therefore in the interest of the Brakes’ counsel to indicate what the outline and facts of such a defence would be, including to Axnoller/Guy’s counsel.
It is clear from Ms Brown, and indeed from all the circumstances, that the document in question did exist, and that she had it on that day. It is also clear that she looked at it in order to inform herself of her client’s case, which she was to present to the court. However, it is clear also from Mr Modha’s evidence that he saw that document, and that he photographed it.
I keep in mind that it was in the Brakes’ own interest to tell AEL, and therefore their counsel, that they had a substantive defence. Conversely, it was not in AEL’s interest in fact to know that they had one, because if they knew they had one, then they would realise that the matter could not be dealt with summarily on that day but would have to go off for trial.
I am satisfied on this material that Ms Brown did tell the judge at least the nature, the substantive nature, of the defence in order to prevent an immediate possession order being made, and also that she must have obtained that information from the draft witness statement which she had with her and which may well have been used, for example, to inform her skeleton argument, which it appears was passed to the court earlier that morning.
The document wasn’t disclosed by the Brakes’ solicitors but:
At the end of the day, I conclude that this is a draft witness statement which has got into the hands of AEL only because it has been seen by their counsel at the hearing on 27 November. I come then to the question: did Ms Brown allow Mr Modha to read it? Mr Modha says she did. Ms Brown says she has no recollection of allowing him to see it and also that would not be her normal practice. Mr Brake’s evidence was that he did not see this happen. Yet, here, the Brakes would have had to persuade the court that they had some defence to put forward, otherwise they risked an immediate possession order.
So, as I have said, I infer that Ms Brown told the court something of the defence, and it would have been quite reasonable in those circumstances to show the other side something beforehand to show them what was the nature of the substantive defence. I entirely accept what Ms Brown says, that ordinarily counsel do not show draft witness statements (or any draft documents) to their opponents. But in this case there was a good reason to do so, and all that Ms Brown says is that it was not her practice and that she has no recollection of doing it on this occasion. So there is not, strictly speaking, any conflict on this point between Ms Brown and Mr Modha.
Nevertheless, my conclusion on all the material before me is that Ms Brown did lend Mr Modha her copy of this witness statement so that he could glean the substantive nature of the defence and that, he having read it, then photographed it. I quite accept that Ms Brown says she did not authorise him to photograph it, but that in a sense is water under the bridge, because in my judgment the act of deliberately showing the draft witness statement to opposing counsel is enough to waive privilege in it, and it does not much matter then whether the photographing was authorised or not.
In any event, however, I find that Mr Modha did photograph it openly in the waiting area, although, since he was not as close to Ms Brown and to Mr Brake as he might have been, it is very possible that they simply missed this. As I say, Ms Brown’s evidence is that she did not see him photograph it, and Mr Brake’s evidence is similar.
As the document had been disclosed to the claimant’s counsel at the hearing by showing it to him, privilege was waived and Mrs Brake could be cross examined on it.
Well, if ever there was a demonstration for the reason to make and keep contemporaneous notes of everything that happens at court, including out of court discussions, there it is. Because you don’t want to be accused by implication of having dipped into opposing counsel’s bad while people were in the loo.
Also, you never know when you will end up as a witness of fact for a situation where you were counsel/solicitor for a party.
And now we await the judgment (and doubtless various permission to appeal applications) on the possession and eviction claims The one in which someone leaves (or doesn’t). Oh the tension…
Update – and today there is more! The one in which the furniture isn’t really in trust, and the horses haven’t vanished and the car probably wasn’t sold – security for costs order. https://www.bailii.org/ew/cases/EWHC/Ch/2021/2640.html
This is just as full of drama and dodgy evidence as all the others.