Summary

Where a claimant had served a notice to prove after the original deadline for service of witness statements, the notice was out of time, pursuant to CPR r.32.19(2)(a). The fact that a judge struck out the bulk of the witness statements which had been served and set a fresh deadline for the service of replacement statements did not have the effect of setting aside the claimant's deemed acceptance of the documents' authenticity which occurred once the original deadline passed.

Facts

The court conducted a pre-trial review of the claimant's claim seeking delivery up of certain documents, an account, and an order for payment of the sum shown on the account.

The claimant had an interest in classic cars. The defendant company was a classic car dealer and restorer. The claimant's case was that the defendant, through its owner and directing mind (H), had acted as his agent for the buying and selling of 19 high-value classic cars between 2011 and 2015. He alleged that, in a meeting in December 2009, H had agreed that the defendant would: source cars for him to purchase and provide advice in that respect; undertake servicing, maintenance and restoration works to those cars; find potential buyers for his cars and provide advice in that respect. It was his case that the defendant's remuneration would be a commission of 10% on any profit made. The claimant did not make the sort of profits that he thought H had promised. In 2016 he requested that the defendant deliver up to him all documents relating to the 19 sold cars. The defendant declined to do so, on the basis that no agency relationship existed. It was the defendant's case that it had sold the cars to the claimant in the first instance, then the claimant had sold the cars back to the defendant; there were no third parties involved and at no point did it sell any of the cars on behalf of the claimant. As part of its case, the defendant had relied upon certain invoices which it said it had sent to third parties or to the claimant. The claimant's case was that he never received a number of the invoices. He served a notice to prove on 7 February 2018, requiring the defendant to prove certain invoices. The defendant's solicitors responded claiming that the notice had been served out of time, as it should have been served by 24 August 2017, which was the "latest date for serving witness statements", pursuant to CPR r.32.19(2)(a). The claimant applied to the instant court seeking a declaration that the notice to prove was validly served in time, or alternatively an extension of time to serve the notice to prove and relief from sanctions. He also applied to cross-examine H on alleged fraudulent misrepresentations. The defendant applied for reverse summary judgment on the entire claim, arguing that in the absence of any evidence that H on behalf of the defendant had agreed to an agency relationship, the claim had to fail.

Held

Defendant's application for reverse summary judgment - There was no express agreement to the effect that the defendant would act as the claimant's agent. However, an agency agreement could be created by implication from the way in which the parties behaved, Branwhite v Worcester Works Finance Ltd [1969] 1 A.C. 552 considered, Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] A.C. 1130 followed. There was at least a real prospect that an observer would consider that what the parties agreed at the December 2009 meeting was an agency. Furthermore, there was sufficient evidence in the emails passing between the parties from which it could be inferred from their subsequent conduct that the claimant and H on behalf of the defendant had entered into an agency agreement. It would be open to the trial judge to conclude that at the relevant times the defendant through H was not buying and selling cars on its own account, but was doing so on behalf of the claimant as his agent. The defendant's application was dismissed, Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) applied (see paras 27-38, 71-72 of judgment).

Claimant's application to cross-examine H - It would be proper to allow the claimant to cross-examine H on the alleged fraudulent misrepresentations made by him in relation to the provenance, authenticity and value of the cars. The allegations were material because they arose out of the same relationship with which the instant claim was directly concerned. H's credibility was squarely in issue: it was proper that it be tested by reference to material which was available which went to that issue (paras 73, 84-89).

Claimant's application re notice to prove - The claimant had argued that, on 1 February 2018, a judge had struck out certain witness statements and had ordered that any further witness statements be served by 20 February; accordingly, the notice to prove was in time, pursuant to r.32.19(2)(a), because where more than one round of factual witness statements was contemplated, then the "latest date for serving witness statements" coincided with the date for serving the final round of those witness statements. That argument had to be rejected. The judge's striking out of the bulk of the existing witness statements did not have the effect of setting aside the deemed acceptance by the claimant of the invoices' authenticity which occurred once the date of 24 August 2017 passed. However, it was appropriate and in the interests of justice to extend time for service of the notice to prove under r.3.1(2)(a) and to grant the claimant relief from sanctions under r.3.9 (paras 108-113).

Applications granted in part.